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THE  POWER  AND  AUTHORITY 

OF 

SCHOOL  OFFICERS  AND  TEACHERS 

IN   THE   MANAGEMENT   AND    GOVERNMENT   OF 
PUBLIC  SCHOOLS  AND  OVER  PUPILS  OUT  OF  SCHOOL 

AS  DETERMINED   BY  THE 

COURTS  OF  THE  SEVERAL  STATES 


BY 

A  MEMBER  OF  THE  MASSACHUSETTS  BAR 


NEW    YORK 
HARPER   &    BROTHERS,   FRANKLIN   SQUARE 

1S85 


Copyright,  1885,  by  Harper  &  Brothers. 


All  rights  reserved. 


la  Diary 

IB 


PREFACE. 


v 


This  collection  of  decisions,  bearing  upon  the 
powers  and  authority  of  school  officers  and  teach- 
ers in  the  management  and  government  of  public 
schools,  is  the  result  of  a  careful  examination  of  re- 
ported cases  in  the  several  states.  The  work  was 
first  undertaken  to  enable  me,  as  a  school  officer, 
to  answer,  with  some  show  of  authority,  the  ques- 
tions constantly  presented.  Its  publication  has 
been  advised  and  urged  by  many  directly  interested 
in  school  work,  and  by  a  large  number  of  teachers 
eminent  in  their  profession.  The  need  of  such  a 
book  has  been  long  felt  and  acknowledged.  With- 
out commenting  upon  the  form  or  substance  of 
other  publications  relating  to  the  law  of  schools,  it 
is  sufficient  to  say  that  this  book,  in  plan  and  scope, 
is  unlike  all  others,  and  certainly  embodies  more 
recent  law  than  any  other. 

My  plan  has  been  to  fully  state  the  facts  upon 
which  each  case  arose  and  was  determined,  and  the 
opinion  of  the  court,  not  the  substance  of  the  deci- 
sion.    The  cases  relating  to  the  same  subject  matter 

404.552 


IV  PREFACE. 

have  been  grouped,  and  reported  in  the  order  of 
date,  with  cross  references  and  annotations. 

In  a  number  of  states  the  decision  of  all  ques- 
tions arising  in  the  administration  of  schools  is  left 
to  the  school  officers,  with  provisions  for  appeal 
from  town  or  subordinate  officials  to  those  of  the 
county,  and  thence  to  the  highest  school  officials  of 
the  state.  In  some  states  the  final  decisions  are 
published.  In  making  up  this  collection  of  cases  I 
have  not  resorted  to  the  decisions  thus  made,  but 
have  taken  those  rendered  by  courts.  In  the  re- 
ports of  cases  decided  by  school  officials  the  state- 
ment of  facts  and  the  decision  are  usually  very  mea- 
gre and  unsatisfactory,  while  the  opinion  of  a  court 
defines  the  principles  governing  the  case.  Again, 
the  tribunals  thus  created  within  the  school  system 
follow  and  depend,  in  a  large  measure,  upon  the 
law  as  announced  by  courts. 

I  have  added  at  the  close  of  the  book,  in  appendi- 
ces, abstracts  of  the  laws  of  the  states  relating  to  the 
supervision  of  schools,  and  the  suspension,  expulsion, 
and  punishment  of  pupils,  and  other  matters. 

The  Compiler. 


-- 
CONTENTS. 


General  Powers  of  School  Officers Page    2 

What  is  a  Reasonable  Rule  ? 2 

Rule  as  to  Tardiness  and  Absence 3 

Bendick  v.  Babcoek,     ) 
Chandler  v.  Babcoek,  ) 

Thompson  v.  Beaver,  63  111.  356 8 

Ttesetf  v.  Lynnfield,  116  Mass.  366 9 

Ferriter  v.  Ty/er,  48  Vt.  444 10 

King  v.  Jefferson  City  School  Board,  71  Mo.  628 .. .   20 

Churchill  v.  Fewkes,  13  Brad.  Rep.  520 22 

Rcles  Concerning  Studies 24 

Donahoe  v.  Richards,  38  Me.  379 24 

Guernsey  v.  Pitkin,  32  Vt.  226 33 

Morrow  v.  Wooe?,  35  Wis.  59 34 

Jiulison  v.  Post,  79  111.  567 41 

Seicell  v.  ifoarJ  o/  Education,  29  0.  St.  89 44 

Trustees  v.  People,  87  111.  303 46 

State  v.  Mizner,  50  Iowa,  152 50 

Kidder  v.  CVieffis,  59  N.  H.  473 52 

Note 56 

Rules  in  Other  Cases 68 

Spiller  v.  Wbburn,  12  All.  127 68 

Perkins  v.  Board  of  Directors,  56  Iowa,  479 72 

Suspension  and  Expulsion 74 

Hodgkins  v.  Rockport,  105  Mass.  475 76 


VI  CONTENTS. 

Suspension  and  Expulsion — Continued: 

Scott  v.  School  District,  46  Vt.  452 ■.  .Page  77 

State  v.  Burton,  45  Wis.  150 78 

Parker  v.  School  District,  5  Lea,  525 80 

Davis  v.  City  of  Boston,  133  Mass.  103 83 

Hughes  v.  Goodell,  3  Pitts.  R.  264 86 

Peck  v.  Smith,  41  Conn.  442 88 

Rights  and  Powers  over  Pupils  for  Acts  Committed 

Out  of  School 91 

Sherman  v.  Charlestown,  8  Cush.  160 91 

Lander  v.  Seaver,  32  Vt.  114 96 

Murphy  v.  Board  of  Directors,  30  Iowa,  429 99 

Drill  v.  Snodyrass,  66  Mo.  286 102 

Corporal  Punishment 105 

Stale  v.  Pendergrass,  2  Dev.  &  Batt.  365 105 

Hathaway  v.  Rice,  19  Yt.  102 109 

Stevens  v.  Fassett,  27  Me.  266 110 

Cooper  v.  McJunkin,  4  Ind.  291 113 

Gardner  v.  State,  4  Ind.  633 115 

Commonwealth  v.  Randall,  4  Gray,  36 116 

Anderson  v.  State,  3  Head,  455 119 

Zander  v.  Seaver,  32  Vt.  114 121 

State  v.  Mizner,  50  Iowa,  152 122 

Dannenhoffer  v.  State,  69  Ind.  295 124 

Commonwealth  v.  Seed,  5  Pa.  L.  J.  R.  78 126 

Note 129 

Rules  Need  not  be  Recorded,  and  Rules  Made  by 

Teactiers  and  Ratified  by  Board  are  Binding 130 

Pupils  Oyer  Age  Subject  to  Rules I33 

Teachers  Acting  in  Good  Faith  not  Personally  Liable  134 

Authority  of  Teacher  in  Charge  of  School,  without 

Holding  Certificate  of  Appointment 138 

State  v.  Williams,  27  Vt.  755 I40 


CONTENTS.  Vll 

APPENDIX   A.  Page 

State  Laws  in  Relation  to  Powers  of  School  Officers..  143 

APPENDIX  B. 
State  Laws  in  Relation  to  Suspension  and  Expulsion..  159 

APPENDIX  C. 
State  Laws  in  Relation  to  Powers  of  Teachers 167 

APPENDIX  D. 
State  Laws  in  Relation  to  Insults  to  Teachers 169 

INDEX 171 


POWER  AND  AUTHORITY 

OF 

SCHOOL  OFFICERS  AND  TEACHERS. 


In  defining  herein  the  rights  and  powers  of  teach- 
ers and  school  officers  in  the  management  of  schools, 
as  determined  by  the  courts  of  last  resort  of  the 
several  states  of  the  Union,  we  assume,  at  the  out- 
set, that  the  school  officers — committee,  visitors, 
trustees,  directors,  or  however  designated  by  statute 
— have  been  legally  chosen  ;  that  the  teachers  have 
been  found  worthy  and  well  qualified,  and  have  re- 
ceived certificates  of  approval  and  election  from  the 
proper  source ;  *  that  the  school  taxes  have  been 
legally  assessed ;  that  the  person  having  such  duty 
has  employed  a  boy  to  open  and  sweep  the  school- 
room and  build  the  fire ;  that  the  scholars  have 
arrived,  and  the  teacher  is  ready  to  call  them  to 
order. 

*  For  authority  of  teacher  having  no  certificate,  see  p.  138. 


2  POWER    AND    AUTHORITY    OF 

By  starting  from  this  point  we  know  better  where 
we  are,  and  escape  a  great  number  of  conflicting  de- 
cisions which  arose  in  the  judicial  interpretation  of 
statutes  enacted  in  the  early  days  of  school  legisla- 
tion. 

GENERAL    POWERS    OF    SCHOOL    OFFICERS. 

A  general  power  of  charge  and  supervision  of 
schools  includes  the  power  to  make  all  reasona- 
ble rules  and  regulations  for  the  discipline,  govern- 
ment, and  management  of  the  schools.  (5  Cush. 
[Mass.]  198;  8  Cush.  [Mass.]  160;  12  All.  [Mass.] 
127;   105  Mass.  476;  63  111.  353.) 

(For  power  as  given  by  law  in  different  states, 
see  Appendix  A.) 

WHAT    IS    A    REASONABLE    RULE 

is  a  question  of  law  to  be  determined  by  the  courts, 
or  by  officers  designated  by  law  to  pass  upon  ques- 
tions arising  in  the  administration  of  the  school 
laws.  (63  111.  353  ;  48  Vt.  476,  477.)  The  Iowa 
Supreme  Court  makes  a  general  definition  as  fol- 
lows :  "  Any  rule  of  the  school,  not  subversive  of 
the  rights  of  the  children  or  parents,  or  in  conflict 
with  humanity  and  the  precepts  of  divine  law,  which 
tends  to  advance  the  object  of  the  law  in  establish- 
ing public  schools,  must  be  considered  reasonable 
and  proper."     (31  Iowa,  565.) 


SCHOOL    OFFICERS    AND    TEACHERS. 


RULE    AS    TO    TARDINESS    AND    ABSENCE. 


Iowa,  1871. — Bendick  v.  Babcock, 
Chandler 


v.  Babcock,     ) 

D  ,      ,    [  31  Iowa,  562. 
er  v.  Babcock,  ) 

The  board  of  directors  and  teachers  in  a  district 
in  Iowa  adopted  the  following  rules,  among  others: 
"  Any  pupil  who  is  absent  six  half  days  in  any  con- 
secutive four  weeks,  and  two  times  tardy,  shall  be 
counted  as  one  absence,  unless  detained  by  sickness 
or  other  unavoidable  cause,  and  shall  be  suspended 
from  the  schools  until  the  end  of  the  term,  or  until 
reinstated  by  the  superintendent  or  board."  "  Teach- 
ers may  require  absence  and  tardiness  to  be  certified 
to  by  parent  or  guardian  in  writing,  or  personally, 
or  by  special  messenger.  All  lessons  lost  on  account 
of  absence  may  be  made  up  at  the  discretion  of  the 
teacher." 

Two  cases  arising  under  this  rule  were  passed 
upon  by  the  Supreme  Court  in  1871.  In  the  first, 
a  boy  was  absent  and  tardy,  and  was  suspended. 
The  teacher  notified  the  boy's  father,  and  informed 
him  that  his  boy  could  return  if  proper  excuse  were 
rendered,  and  assurance  given  that  the  acts  would 
not  be  repeated.  The  father  replied  that  he  kept 
the  boy  at  home  to  work,  and  for  that  reason  he 
was  absent  and  tardy ;  that  he  could  give  no  assur- 
ance as  to  the  future,  and  claimed  the  right  to  keep 
his  boy  at  home  at  any  time  for  the  above  purpose, 
and,  notwithstanding  the  above  rule,  to  send  him  to 
school. 


4  POWER    AND    AUTHORITY    OF 

In  the  second  case  a  girl  was  suspended  for  being 
absent.  Her  parents  represented  that  she  was  kept 
from  school  to  be  taken  upon  a  visit  with  them ; 
that  they  were  poor,  and  unable  to  leave  their  chil- 
dren at  home  when  they  went  visiting,  and  had  to 
take  her  with  them. 

The  suspended  pupils  brought  suit  against  the  di- 
rectors and  superintendent  for  damages,  and  asked 
the  court  to  restrain  the  directors  from  enforcing 
the  rule.  It  was  claimed  that  the  rule  first  quoted 
was  unreasonable,  oppressive,  and  unjust.  The  court 
held  otherwise,  and  decided  it  to  be  reasonable  and 
proper,  and  in  the  course  of  the  opinion  say : 

"The  object  of  public  schools,  as  established  by 
our  laws,  is  to  secure  education  to  the  children  of 
the  state.  The  intention  of  the  law  is,  not  that  the 
children  shall,  at  certain  times  or  on  certain  days, 
be  simply  gathered  together,  but  that,  when  assem- 
bled, they  shall  be  instructed.  Their  progress  in 
learning  is  the  grand  object  of  the  law.  ...  It  re- 
quires but  little  experience  in  the  instruction  of 
children  and  youth  to  convince  any  one  that  the 
only  means  which  will  assure  progress  in  their  stud- 
ies is  to  secure  their  attendance ;  the  application  of 
the  powers  of  their  minds  to  the  studies  in  which 
they  are  instructed.  .  .  .  But  this  cannot  be  done 
if  they  are  at  school  one  day  and  at  home  the  next; 
if  a  recitation  is  omitted  or  a  lesson  left  unlearned 
at  the  whim  or  convenience  of  parents.  .  .  .  The 


SCHOOL    OFFICERS    AND    TEACHERS.  5 

rule  requiring  prompt  and  constant  attendance  is 
for  the  good  of  the  pupil,  and  to  secure  the  very 
objects  the  law  had  in  view  in  establishing  public 
schools.     It  is,  therefore,  reasonable  and  proper.  .  .  . 

"  Tardiness — that  is,  arriving  late — is  a  direct  in- 
jury to  the  whole  school.  The  confusion  of  hurry- 
ing to  seats,  gathering  together  of  books,  etc.,  by 
tardy  ones,  at  a  time  when  all  should  be  at  study, 
cannot  fail  to  greatly  impede  the  progress  of  those 
who  are  regular  and  prompt  in  attendance.  The 
rule  requiring  prompt  and  regular  attendance  is  de- 
manded for  the  good  of  the  whole  school.  While 
it  may  be  admitted  that  absence  and  tardiness  are 
acts  committed  out  of  school  hours,  yet,  as  their 
effects  and  consequences  operate  upon  the  school — 
the  pupils  when  assembled  for  instruction  —  they 
are  therefore  subject  to  control  by  rules  for  the  gov- 
ernment of  the  schools.  .  .  .  The  rule  in  question,  as 
we  have  shown,  operates  directly  upon  the  order  of 
the  school ;  upon  the  pupils  when  assembled  for  in- 
struction. It  promotes  efficiency  to  the  school,  and 
secures  the  progress  of  the  pupils  in  their  studies. 
It  is  therefore  a  rule  for  the  government  of  the  school, 
and  must  be  regarded  as  proper  and  reasonable,  and 
within  the  authority  of  the  school  officers  to  pre- 
scribe and  enforce. 

"  It  is  argued  that  the  rule  interferes  with  pa- 
rental authority,  inasmuch  as  it  deprives  the  parent 
of  his  right  to  the  services  and  society  of  the  child 


6  POWER    AND    AUTHORITY   OF 

at  times  when  lie  may  require  them.  ...  If  be 
would  have  him  make  proper  advances  in  school,  he 
must  not  distract  his  attention  and  slacken  his  in- 
terest by  interruptions  for  a  day  or  two  in  a  week, 
or  an  hour  or  so  in  a  day,  for  the  little  advantage 
that  he  may  derive  from  bis  labor  during  such 
times.  Neither  has  the  parent  the  right  to  interfere 
with  the  order  of  the  school,  or  the  progress  of  the 
pupils,  by  sending  his  own  child  at  times  and  in  a 
condition  that  will,  as  we  have  seen,  prove  an  an- 
noyance and  hinderance  to  others.  .  .  . 

"  Again,  it  is  said  that  the  rule  visits  upon  the 
child  punishment  for  the  parent's  offence.  That  is, 
the  child  is  kept  from  school  through  the  fault  of 
the  parent,  and  is  punished  for  the  act  of  the  par- 
ent in  detaining  him.  If  the  good  of  the  children 
were  to  be  considered  only,  there  would  be  force  in 
this  argument ;  but  it  is  completely  answered  by  the 
consideration  that  the  parent's  act  is  an  injury  to 
the  whole  school.  He  makes  the  child,  in  the  ex- 
ercise of  his  authority,  a  source  of  annoyance  and 
absolute  injury  to  all  the  other  pupils  of  the  school. 
This  he  cannot  do.  The  child,  through  no  fault  of 
his  own  or  of  his  parents,  may  be  afflicted  with  a 
contagious  disease ;  yet,  as  the  good  of  other  pupils 
demanded  it,  he  may  be  for  that  reason  forbidden 
attendance  at  the  school  {Spear  v.  Cummings,  23 
Pick.  225).  So,  if,  by  the  exercise  of  parental  au- 
thority, the  child  is  made  to  act  in  such  a  manner 


SCHOOL    OFFICERS    AND    TEACHERS.  7 

as  to  interfere  with  the  progress  of  his  fellow-pu- 
pils, it  is  the  duty  of  those  having  charge  of  the 
school  to  remove  the  evil  by  dismissing  the  pupil 
causing  it.  The  good  of  the  whole  school  cannot 
be  sacrificed  for  the  advantage  of  one  pupil  who  has 
an  unreasonable  father. 

"  It  is  urged  as  an  objection  to  the  rules  in  ques- 
tion that  poor  parents  who  require  at  certain  times 
of  the  day,  as  the  morning  hours,  or  during  the 
whole  of  school-days,  the  services  of  their  children 
to  aid  in  earning  their  support,  will  be  prohibited 
sending  them  to  the  public  schools.  But  this  appli- 
cation of  the  rules  is  foreign  to  their  spirit,  and  it 
cannot  be  presumed  that  they  will  be  unjustly  and 
wantonly  enforced  in  cases  not  in  their  spirit.  The 
tenth  rule  provides  that  absence  and  tardiness,  un- 
less from  sickness  or  other  unavoidable  causes,  shall 
be  punished  by  suspension ;  and  the  eleventh  rule 
provides  that  the  parents  may  be  required  to  certify 
the  cause  of  absence  and  tardiness.  Now  we  cannot 
believe  that  a  school  board  or  school  teacher  within 
our  state  will  not  accept  as  an  unavoidable  cause  of 
absence  or  delay  in  reaching  school  the  fact  that  the 
child's  services,  at  such  times,  were  demanded  for 
its  own  support  or  that  of  its  parent.  In  such  cases 
the  school  boards  and  teachers  will  be  bound  to  per- 
mit inconveniences  and  annoyances  to  other  pupils, 
which  we  have  above  pointed  out,  for  the  sake  of 
such  unfortunate  ones,  upon  whom  want  has  en- 


8  POWER    AND    AUTHORITY    OF 

forced  the  necessity  of  labor  during  school  hours. 
No  such  case  as  this  is  made  by  the  records  before  us. 

"  In  the  first  case  the  son  was  detained  from 
school  to  do  some  work  in  preparing  '  shrubbery  for 
winter,'  and  his  tardiness  resulted  from  the  fact  that 
he  had  '  two  cows  to  take  care  of,'  and  was  required 
-  to  do  the  marketing  for  the  family.'  These  facts 
do  not  indicate  a  condition  in  life  that  requires  the 
labor  of  a  lad  either  for  his  own  support  or  for  that 
of  his  parents. 

"  In  the  other  case  the  daughter  was  kept  from 
school  to  visit  with  her  parents.  A  family  that  can 
afford  to  visit  may  well  keep  their  children  at 
school,  and  if  this  can  only  be  done  by  the  parents 
depriving  themselves  of  the  pleasures  of  visiting,  it 
is  not  too  great  a  sacrifice  to  secure  the  great  bene- 
fits of  education  to  their  offspring." 

The  foregoing  views,  it  is  believed,  are  sus- 
tained by  the  following  cases :  Sherman  v.  Charles- 
town,  8  Cush.  100;  Donahoe  v.  Richards,  38  Me. 
379;  Landers  v.  Seaver,  32  Vt.  114;  Guernsey  v. 
Pitkin,  32  Vt.  224;  Spiller  v.  Woburn,  12  All. 
127.* 

Illinois,  1872.— Tliompson  v.  Beaver,  63  111.  356. 

Directors  of  a  district  in  Illinois  made  a  rule  that 
the  school -house  doors  should  be  barred  against 
tardy  children.     In  an  action  to  determine  certain 
*  Seep.  10.     (48  Vt.  444.) 


SCHOOL    OFFICERS    AND    TEACHERS.  9 

powers  of  township  trustees,  the  power  of  school 
directors  was  considered,  as  bearing  upon  this  rule. 

The  Supreme  Court  said: 

"  The  directors  undoubtedly  have  the  power  to 
make  and  cause  to  be  enforced  all  reasonable  rules 
and  regulations  for  the  government  of  schools  in 
their  respective  districts.  What  are  reasonable  rules 
is  a  question  of  law,  and  we  do  not  hesitate  to  de- 
clare that  a  rule  that  would  bar  the  doors  of  the 
school-house  against  little  children  who  had  come 
from  so  great  a  distance  (a  mile  and  a  half)  in  the 
cold  winter,  for  no  other  reason  than  that  they  were 
a  few  minutes  tardy,  is  unreasonable,  and  therefore 
unlawful.  In  its  practical  operation  it  amounts  to 
little  less  than  wanton  cruelty." 

Massachusetts,  1874. — Eitssell  v.  Lynnjield,  110  Mass.  366. 

One  member  of  the  school  committee  of  Lynn- 
field,  Mass.,  made  a  rule  that  if  a  pupil  was  tardy 
twice  the  teacher  should  send  the  pupil  to  him. 
This  rule  was  subsequently  assented  to  by  the  other 
members  of  the  board.  A  girl  was  tardy  the  sec- 
ond time,  and  the  teacher  told  her  to  go  to  the 
above  member  of  the  committee.  She  left  the 
schoolroom,  but,  instead  of  obeying  the  command 
of  the  teacher,  went  directly  home.  For  this  diso- 
bedience the  teacher  suspended  her  from  school  un- 
til she  should  conform  to  the  rule. 

The  girl  brought  suit,  but  the  Supreme  Court  dc- 


10  POWER    AND    AUTHORITY    OF 

cided  in  favor  of  the  rule.  The  justice  delivering 
the  opinion  of  the  court  says :  "  For  the  disobedi- 
ence of  a  regulation  established  to  prevent  tardiness, 
the  plaintiff  was  suspended  from  a  public  school  un- 
til she  should  conform  to  the  rule.  .  .  .  Upon  the 
case  here  presented  we  cannot  see  that  there  was 
not  a  reasonable  exercise  on  the  part  of  the  teacher 
of  the  power  necessary  to  punish  disobedience  and 
promote  the  proper  government  and  discipline  of 
the  school." 

Vermont,  I8l6.—Ferriter  v.  Tyler,  48  Vt.  444. 

An  important  case  was  decided  by  the  Supreme 
Court  of  Vermont  in  1876.  The  decision  was  to 
the  effect  that  the  committee  of  a  school  district 
had  authority  to  exclude  children  from  school  for 
absence  contrary  to  the  rules  thereof,  although  such 
absence  was  in  obedience  to  the  command  of  Cath- 
olic parents  and  their  priest,  and  for  the  purpose  of 
atttending  religious  services. 

The  priest  of  a  Catholic  church  in  Brattleboro,  on 
the  morning  of  June  4th,  1874,  sent  to  the  commit- 
tee of  Brattleboro  this  note : 

"  You  will  confer  a  favor  on  us  Catholics  by  ex- 
empting the  Catholic  children  from  attending  school 
on  all  holy  days.  I  should  have  called  and  explained 
our  reasons,  but  have  not  had  opportunity  as  yet." 

The  committee  replied  as  follows  : 

"  Your  note  is   just  received.     To  comply  with 


SCHOOL    OFFICERS    AND    TEACHERS.  1  1 

your  request  involves  closing  two  of  our  schools, 
and  greatly  interrupting  several  others.  This  we 
never  have  done,  and  cannot  do.  We  have  great 
pride  in  our  schools,  in  which  the  Catholic  children 
are  as  well  treated  as  any." 

The  4th  day  of  June,  1874,  was  called  "  holy 
Corpus  Chris ti  day  ;"  and  considered  and  set  apart 
by  the  Catholic  Church  as  a  holy  day.  Catholic 
parents  were  directed  by  their  spiritual  adviser,  their 
priest,  to  attend  services  on  that  day,  and  have  their 
children  do  so.  On  the  day  before,  the  Catholic 
children  informed  their  teachers  that  they  should 
not  attend  school  on  the  next  day,  that  it  was  a 
holy  day,  and  they  had  been  directed  by  their  priest 
to  attend  services  at  church  on  that  day.  The 
teachers  replied  that  they  could  not  be  excused  for 
that  purpose.  On  the  morning  of  the  4th  of  June 
five  or  six  of  such  scholars  called  on  the  committee 
and  said  they  had  heard  that  the  committee  would 
not  excuse  them,  if  they  were  absent  to  attend 
church  on  that  day ;  to  whom  the  committee  replied 
that  they  had  not  been  requested  to  excuse  them, 
and  that  they  could  not  have  done  so,  if  they  had 
been  requested.  The  children  then  went  to  their 
priest,  and  soon  returned  with  the  note  from  him 
above  recited. 

Some  sixty  Catholic  children,  by  direction  and 
command  of  their  parents,  were  kept  from  school 
to  attend  religious  services.    When  they  applied  for 


12  POWER    AND    AUTHORITY    OF 

admission  to  the  schools  they  were  told  by  the  com- 
mittee that,  as  they  had  absented  themselves  without 
permission,  and  in  violation  of  the  rules  of  the 
school,  which  they  well  understood,  they  could  not 
return  without  an  assurance  from  their  parents  or 
their  priest  that  in  future  they  would  comply  with 
the  rules  of  the  schools.  The  committee  assured  the 
children,  their  parents,  and  also  the  priest,  that  if 
the  schools  would  not  again  be  interrupted  in  like 
manner  they  would  gladly  admit  the  children  to 
them.  The  priest  and  parents  refused  to  comply 
with  this  proposal,  and  claimed  that  on  all  days 
which  they  regard  as  holy,  they  could,  as  matter  of 
right,  take  their  children  from  the  schools,  without 
any  regard  to  the  rules  thereof. 

For  more  than  ten  years  there  had  been  a  rule, 
required  by  the  committee,  that  those  registered  as 
scholars  for  a  given  term  should  be  constant  and 
regular  in  their  attendance,  and  not  be  absent,  ex- 
cept by  permission  of  the  teachers  or  the  committee, 
on  reasonable  cause  shown.  The  committee  claimed 
the  right,  which  they  had  exercised,  to  suspend  from 
school  during  the  remainder  of  the  current  term, 
scholars  who  violated  the  rule. 

The  parents  asked  the  Supreme  Court  to  restrain 
the  committee  from  excluding  their  children  from 
school,  and  based  their  claims  upon  two  grounds : 

First.  "  Their  constitutional  right  to  worship  God 
according  to  the  dictates  of  their  own  consciences, 


SCHOOL    OFFICERS    AND    TEACHERS.  13 

without  being  abridged  in  the  enjoyment  of  tlicir 
civil  rights."  Second.  Their  "  right  to  exercise  par- 
ental authority  and  government  over  their  children 
as  regards  their  moral  training  and  culture." 

The  court  held,  at  the  outset,  that  the  parents 
were  not  the  proper  parties  to  the  suit,  but,  in  view 
of  the  importance  of  the  subject,  they  considered  it 
on  a  broader  ground,  by  supposing  the  children  to 
have  been  substituted  for  the  parents. 

The  "  rights  of  conscience  "  article  in  the  Consti- 
tution of  Vermont  is :  "  That  all  men  have  a  natu- 
ral and  inalienable  right  to  worship  Almighty  God 
according  to  the  dictates  of  their  own  consciences 
and  understandings,  as  in  their  opinion  shall  be  reg- 
ulated by  the  word  of  God ;  and  that  no  man  ought 
to,  or  of  right  can,  be  compelled  to  attend  any  re- 
ligious worship,  etc.,  contrary  to  the  dictates  of  his 
conscience ;  nor  can  any  man  be  justly  deprived  or 
abridged  of  any  civil  right  as  a  citizen  on  account 
of  his  religious  sentiments  or  peculiar  mode  of  re- 
ligious worship ;  and  no  authority  can  or  ought  to 
be  vested  in  or  assumed  by  any  power  whatever  that 
shall  in  any  case  interfere  with,  or  in  any  manner 
control,  the  rights  of  conscience  in  the  free  exercise 
of  religious  worship :  nevertheless,  every  sect  or 
denomination  of  Christians  ought  to  observe  the 
Sabbath  or  Lord's  day,  and  keep  up  some  sort  of 
religious  worship,  which  to  them  shall  seem  most 
agreeable  to  the  revealed  will  of  God." 


14  POWER    AND    AUTHORITY    OF 

The  following  are  extracts  from  the  opinion  ren- 
dered by  the  court : 

"...  Art.  III.  (above  recited)  was  not  designed 
to  subjugate  the  residue  of  the  Constitution,  and  the 
important  institutions  and  appliances  of  the  gov- 
ernment provided  by  the  enacted  laws  for  serving 
the  highest  interests  of  the  public  as  involved  in 
personal  condition  and  social  relations,  to  the  pe- 
culiar faith,  personal  judgment,  individual  will  or 
wish  of  any  one  in  respect  to  religion,  however  his 
conscience  might  demand  or  protest.  In  that  re- 
spect it  is  implied  that  while  the  individual  may 
hold  the  utmost  of  his  religious  faith,  and  all  his 
ideas,  notions,  and  preferences  as  to  religious  worship 
and  practice,  he  holds  them  in  reasonable  subservi- 
ency to  the  equal  rights  of  others,  and  to  the  para- 
mount interests  of  the  public  as  depending  on,  and 
to  be  served  by,  general  laws  and  uniform  adminis- 
tration. .  .  . 

"  Let  it  be  granted  that  parents  and  others  may, 
npon  their  own  respective  reasons,  control  the  at- 
tendance of  the  scholars,  as  against  the  official  right 
of  the  committee  in  that  behalf,  and  practically  the 
ground  of  system  and  order  and  improvement  has 
no  existence.  ...  If  a  Catholic  citizen  should  be 
serving  on  a  jury  in  the  midst  of  a  trial  when  divine 
service  in  his  church  on  holy  Corpus  Christi  should 
be  in  progress,  would  it  be  a  violation  of  his  rights 
under  said  Art.  III.  to  compel  him  to  keep  his  seat 


SCHOOL    OFFICERS    AND    TEACHERS.  15 

and  serve  through  the  trial?  The  same  may  be 
asked  of  the  Jew  or  the  seventh-day  Baptist,  who 
should  be  required  to  do  like  service  on  Saturday. 
The  same  may  be  asked  of  a  devout  Methodist,  when 
a  camp-meeting  or  a  love-feast  should  be  in  progress 
in  his  vicinage.  If  either,  or  all,  should  refuse  to 
serve,  would  their  rights  of  conscience  under  Art. 
III.  be  a  valid  defence  in  a  prosecution  for  the  pen- 
alty in  such  case  provided.  .  .  . 

"  Let  it  be  repeated  then,  that  that  article  in  the 
Constitution  was  not  designed  to  exempt  any  person 
or  persons  of  any  sect,  on  the  score  of  conscience  as 
to  matters  of  religion,  from  the  operation  and  obli- 
gatory force  of  the  general  laws  of  the  state,  author- 
ized by  other  portions  of  the  same  instrument,  and 
designed  to  serve  the  purposes  contemplated  by  such 
other  portions ;  it  was  not  designed  to  exempt  any 
persons  from  the  same  subjection  that  others  are 
under  to  the  laws  and  their  administration,  on  the 
score  that  such  subjection  at  times  would  interfere 
with  the  performance  of  religious  rites,  and  the  ob- 
servance of  religious  ordinances,  which  they  would 
deem  it  their  duty  to  perform  and  observe  but  for 
such  subjection.   .  .  . 

"  It  remains  now  to  be  considered  whether  the  bill 
can  be  maintained  on  the  other  ground,  namely,  the 
prerogative  of  parents  to  control  their  children  as 
scholars,  as  against  the  prerogative  of  the  commit- 
tee to  make  and  enforce  the  rule  in  question.     This 


16  POWER    AND    AUTHORITY    OF 

docs  not  involve  any  right  or  question  of  conscience 
under  the  Constitution,  but  only  the  matter  of  legal 
right  under  the  statutes  as  to  public  schools.  .  .  . 
By  our  statutes  the  committee  are  charged  with  the 
duty  of  '  adopting  all  requisite  measures,'  etc.,  as 
before  recited.*  The  graded  school  in  Brattleboro 
is  organized  and  acts  in  pursuance  of  the  statutes 
in  that  behalf.  The  committee  are  chosen  and 
charged  with  their  duties  under  the  same  statutes. 
They  adopted  rules  for  the  regulation  of  the  schools, 
and  for  the  improvement  of  the  scholars  in  learn- 
ing. The  rule  in  question  is  for  the  purpose  of 
inducing  and  enforcing  constancy  in  attendance. 
That  such  constancy  is  essential  to  such  improve- 
ment is  not  debatable.  That  such  attendance  is 
requisite  as  matter  of  regulation  in  order  to  the 
necessary  classification  of  the  scholars  in  reference 
to  age,  capacity,  studies,  and  proficiency  is  not  de- 
batable. Those  who  attend  constantly  cannot  be 
required  to  linger,  in  order  that  the  inconstant  may 
keep  along  with  them ;  nor  can  such  inconstant 
scholars  keep  equal  pace  with  those  who  attend 
constantly.  The  rule,  then,  is  such  as  is  contem- 
plated by  the  statute,  so  far  as  the  puiyose  of  it  is 
concerned.  That  purpose  is  indispensable  to  the 
attainment  of  the  object  and  end  proposed  by  the 

*  "  Adopting  all  requisite  measures  for  the  inspection,  ex- 
amination, and  regulation  of  the  schools,  and  the  improve- 
ment of  the  scholars  in  learning."     (Gen.  Sts.  c.  22,  §  39.) 


SCHOOL    OFFICERS    AND    TEACHERS.  17 

statutes,  both  as  to  the  individual  scholar  and  as  to 
all  others  who  may  be  affected  by  his  attendance 
and  absence.  The  answer  states,  as  before  recited, 
that  the  rule  had  been  in  operation  for  more  than 
ten  years.  The  children  of  the  orators  were  sub- 
jected to  its  operation  in  the  present  instance.  Was 
that  unlawful  ? 

"  If  the  orators  had  the  right  to  control  the  at- 
tendance of  their  children  as  against  that  rule,  then 
the  committee  had  not  the  right  to  maintain  and 
enforce  such  rule.  We  are  not  prepared  to  sanc- 
tion a  view  of  the  subject  that  would  subordinate 
the  authority  of  the  committee,  in  the  matter  of  the 
attendance  of  the  registered  scholars,  to  the  will  of 
parents.  On  the  other  hand,  we  do  not  hesitate  to 
hold  and  declare  as  matter  of  law  that,  in  this  re- 
spect, the  citizen  is  in  subordination  to  the  lawful 
rules  for  the  regulation  of  schools,  and  the  improve- 
ment of  scholars  in  learning ;  and  this  is  for  the 
same  fundamental  reason  that  he  is  in  subordina- 
tion to  the  statutes  themselves,  on  that  or  any  other 
subject ;  and  it  is  no  more  his  right  to  defy  or  dis- 
regard those  rules  than  it  is  to  defy  and  disregard 
any  statute  that  affects  him  as  a  citizen  in  respect 
to  schools,  or  any  other  subject  involving  the  com- 
mon weal,  as  it  is  to  be  provided  for  under  the  Con- 
stitution by  the  legislation  of  the  state.  .  .  . 

"  Recurring  now  to  what  is  stated  in  the  answer  as 
to  the  manner  in  which  the  rule  has  been  administered, 


18  POWER    AND    AUTHORITY    OF 

it  is  proper  to  remark,  that  the  lawfulness  and  pro- 
priety of  the  rule  are  not  to  be  tested  or  adjudged 
upon  the  presumption  that  the  penal  part  of  it  will 
be  unjustly  or  unwarrantably  enforced.  The  pre- 
sumption is  the  other  way,  to  wit,  that  it  will  be 
administered  justly,  and  upon,  and  with  reference 
to,  warrantable  occasion.  If  a  case  should  arise  in 
which  it  should  appear  that  the  penalty  had  been 
inflicted  outside  of  or  beyond  the  fair  scope  and 
reason  of  the  rule,  it  would  be  both  the  province 
and  the  duty  of  the  courts  to  accord  proper  reme- 
dy. But,  as  before  demonstrated,  this  is  not  such  a 
case.  And  this  leads  to  the  further  remark,  that  the 
remedy  is  not  sought  in  this  case  as  against  the  re- 
fusal of  leave  to  be  absent  on  the  4th  of  June ;  but 
as  against  the  imposing,  as  the  condition  of  remit- 
ting the  penalty,  a  promise  that  absence  for  a  simi- 
lar cause  should  not  be  repeated  that  term.  Such 
promise  being  refused,  the  penalty  of  exclusion  was 
not  remitted,  and  the  children  did  not  return  to  the 
schools  ;  and  hence  the  position  assumed  by  the 
orators — the  same  as  already  stated — that  the  com- 
mittee had  not  the  lawful  right  to  exclude  scholars 
who  should  be  absent  by  the  direction  of  their 
parents,  contrary  to  the  established  rule  of  the 
school. 

"  As  before  intimated,  this  position  takes  no  ac- 
count of  any  difference  of  occasion  or  reason  for 
such  direction   of  parents,  whether  it  be  religious 


SCHOOL    OFFICERS    AND    TEACHERS.  19 

service  or  secular  employment  or  amusement,  but  is 
on  the  ground  only  of  the  right  of  the  parent  as 
against  the  rule  of  the  school.  In  reference  to  that 
position,  in  explicit  statement,  as  the  result  of  the 
discussion,  it  is  held  that  the  scholars  of  a  school 
are  amenable  to  the  school  authorities  as  to  their 
conduct  as  scholars  affecting  the  school,  notwith- 
standing the  prerogative  of  their  parents  in  respect 
to  them.*  .  .  .  The  rule  in  question  in  this  case,  and 
the  enforcement  of  it,  are  subject  to  the  judgment 
of  the  courts  as  between  the  parties  to  the  suit.  It 
is  easy  to  suppose  cases  in  which  such  enforcement 
would  be  beyond  the  lawful  right  of  the  committee. 
The  rule  itself,  in  terms  and  intent,  contemplates 
exclusions  as  a  penalty  only  where  permission  to  be 
absent  is  withheld  for  want  of  reasonable  cause 
shown.  In  case  of  casual  sickness  of  the  scholar ; 
of  sickness  or  death  in  the  family  of  the  scholar ; 
of  some  impediment,  like  fire  or  flood  ;  in  case  of 
various  incidents  of  current  life,  giving  occasion  for 
temporary  absence,  the  enforcement  of  the  penalty 
of  exclusion  would,  under  such  circumstances,  be 
adjudged  to  be  unauthorized  under  the  statutes  and 
law  by  which  the  subject  is  governed." 

*  See  as  to  this  point,  p.  3.     (31  Iowa,  562.) 


20  POWER    AND    AUTHORITY    OF 

Missouri,  1880. — King  v.  Jefferson  City  School  Board,  71  Mo. 
628. 

The  following  is  from  an  opinion  rendered  by  the 
Supreme  Court  of  Missouri  in  1880,  in  an  action 
against  the  School  Board  of  Jefferson  City  for  the 
suspension  of  a  boy  under  the  rule  stated. 

"  The  rule  is  as  follows :  '  Any  pupil  absent  six 
half  days  in  four  consecutive  weeks,  without  satis- 
factory excuse,  shall  be  suspended  from  school.'  The 
statute  provides  (R.  S.  1879,  §  7045)  that  'the 
board  shall  have  the  power  to  make  all  needful  rules 
and  regulations  for  the  organization,  grading,  and 
government  of  the  schools  in  their  district.'  It  is 
clear  that  the  legislature  have  intrusted  to  this  school 
board  the  duty  of  making  regulations,  touching  the 
government  of  the  school,  of  the  necessity  and  pro- 
priety of  which  they  are  primarily  the  judges.  They 
are  elected  by  the  people  of  the  district,  and  must 
be  presumed  to  be  conversant  with  the  subject,  and 
have  no  motive  to  make  any  rules  except  such  as, 
in  their  best  judgment,  are  necessary  and  proper 
to  promote  the  objects  of  our  common-school  sys- 
tem. .  .  . 

"  It  is  said  that  occasional  absences  from  school 
on  the  part  of  the  pupil,  or  truancy  as  it  is  familiar- 
ly termed,  is  of  no  importance  to  any  one  except 
the  pupil  or  his  parents,  and  its  indulgence  is,  there- 
fore, not  to  be  attended  with  such  punishment  as 


SCHOOL    OFFICERS    AND    TEACHERS.  21 

suspension  or  expulsion  from  the  school  entirely ; 
that  every  child  has  a  right  to  go  to  the  public 
school,  and  that  right  cannot  be  taken  away  by  a 
rule  of  the  board ;  that  such  rule  is  subversive  of 
the  object  of  our  system  of  common  schools,  which 
was  designed  to  throw  open  and  leave  open  the 
doors  of  the  school  to  all  children  of  the  proper 
age,  and  give  them  an  opportunity  of  acquiring  such 
education  as  will  fit  them  for  the  after-duties  of  life. 
This  is  true,  but  this  right  of  attending  school  nec- 
essarily requires,  when  the  school  is  joined,  and 
while  such  attendance  continues,  a  submission  to 
the  regulations  of  the  school. 

"  Suppose  Rule  11  to  be  inverted,  and  instead  of 
reading  as  it  now  stands,  should  read  thus;  'Any 
pupil  is  at  liberty  to  go  a-fishing  during  school 
hours  and  be  absent  a  half  day  or  a  whole  day,  and 
as  many  days  as  he  pleases,  provided  he  conducts 
himself  decently  when  in  attendance  on  school.' 
And  this  is  the  point  to  which  the  argument  of  the 
plaintiff  tends.  The  pupil,  it  is  urged,  is  at  liberty 
to  be  absent  when  he  pleases,  and  such  absence  is  a 
matter  solely  between  him  and  his  parents.  But 
the  studies  in  our  public  schools  are,  I  presume, 
classified  according  to  the  ages  and  advancement  of 
the  scholars ;  and  the  continued  or  repeated  ab- 
sences of  one  of  a  class  not  only  is  injurious  to  the 
absentee,  but  if  allowed  beyond  a  certain  point  is 
calculated  to  demoralize  those  who  attend,  and  de- 


22  POWER    AND    AUTHORITY    OF 

range  the  orderly  instructions  of  the  teacher.  Taxes 
are  not  collected  to  pay  teachers  to  sit  in  front  of 
empty  benches,  or  to  hunt  up  truant  boys.  Such 
absences,  when  without  excuse,  are  the  fault  of  the 
parents,  whose  business  it  is  to  see  that  the  attend- 
ance of  their  child  is  regular,  unless  prevented  by 
causes  which  will,  of  course,  be  an  excuse  under  the 
rule  now  in  question.  My  opinion  is,  that  the  rule 
in  question  was  clearly  within  the  power  of  the 
board  of  directors,  and  that  it  is  not  our  business  to 
supervise  its  expediency,  even  if  we  might  differ 
with  the  board  on  that  point,  but  all  the  judges  are 
of  opinion  that  the  rule  was  a  reasonable  and  proper 


Illinois,  1883.— Churchill  v.  Fewkes,  13  Brad.  Kep.  520. 

This  action  was  by  pupil  against  school  directors 
and  teachers  for  expulsion  from  school.  The  direc- 
tors had  made  the  following  rules : 

"  Any  pupil  who  shall  be  absent  six  one  half  days, 
without  a  valid  excuse,  shall  be  liable  to  suspension 
from  study,  and  no  pupil  thus  suspended  shall  be 
restored  without  permission  from  the  board." 

"  All  pupils  will  be  required  to  bring  written  ex- 
cuses from  their  parents  to  teachers  for  absence, 
and  such  excuses  must  be  satisfactory  and  reason- 
able, otherwise  it  will  not  be  granted." 

The  pupil  suspended  was  absent  from  school 
about  two  weeks,  in  violation  of  these  rules.     When 


SCHOOL    OFFICERS    AND    TEACHERS.  23 

she  returned  she  declined  to  give  any  reason  what- 
ever for  her  absence.  The  teacher  called  her  atten- 
tion to  the  rules,  and  informed  her  that  it  would  be 
necessary  for  her  to  bring  a  written  excuse  from  her 
mother.  The  parents  refused  to  give  a  written  ex- 
cuse showing  why  she  had  been  absent,  although 
she  was  absent  with  their  knowledge  and  consent. 
After  several  days  the  principal  of  the  school  and 
assistant  teacher  each  wrote  a  letter,  couched  in  polite 
terms,  to  the  mother  (believing  her  to  be  the  only 
parent),  calling  her  attention  to  the  rules  of  the 
school  as  prepared  and  adopted  by  the  board  of  di- 
rectors, and  their  duty  in  the  premises,  and  respect- 
fully asking  that  she  would  furnish  her  daughter 
with  a  reasonable  excuse  for  her  absence  from  school. 
No  reply  was  made  to  these  letters,  and  after  the 
lapse  of  some  four  or  five  days,  no  excuse  having 
been  received  from  the  parents,  the  child  was  sus- 
pended from  further  recitations. 

The  suit  was  then  brought. 

The  court  decided  that  an  action  would  not  lie 
against  a  public  officer  acting  in  good  faith,  af- 
firming the  law  as  laid  down  in  McCormick  v.  Burt 
(p.  134),  and  thus  commented  upon  the  rule  : 

"  The  rule  in  question  is  not  a  hard  or  harsh  one. 
It  does  not  of  itself  indicate  any  sinister  or  malevo- 
lent purpose,  or  wicked  force,  on  the  part  of  the 
directors.  It  does  not  trench  upon  the  rights  or 
dignity  of  any  one.     We  instantly  and  properly  re- 


24  POWER    AND    AUTHORITY    OF 

pel  any  encroachment  upon  our  rights  as  citizens. 
We  have  a  proper  pride  and  ambition  in  maintaining 
those  rights  under  any  and  all  circumstances.  But 
I  am  utterly  unable  to  understand  how  this  simple 
rule  or  regulation,  requiring  the  pupil  in  certain 
cases  to  bring  a  written  excuse  from  its  parents 
to  the  teacher,  is  an  attack  upon,  or  an  abridgment 
of,  our  inalienable  rights  as  citizens  of  this  free 
country." 

RULES  CONCERNING  STUDIES. 
Maine,  1854. — Donahoe  v.  Richards,  38  Me.  379. 

The  school  committee  of  Ellsworth,  Me.,  required 
the  use  of  the  Bible  in  their  schools ;  and  that  all 
of  sufficient  capacity  should  read  therein,  and  di- 
rected the  use  of  the  common,  or  Protestant,  version. 
A  Catholic  girl  was  expelled  for  not  complying  with 
this  rule,  and  she  began  suit  for  this  expulsion. 
Both  the  girl  and  her  father  considered  the  reading 
of  this  version  to  be  sinful,  and  had  been  so  in- 
structed by  the  Church.  The  case  was  decided  by 
the  Supreme  Court  in  1854,  and  in  favor  of  the 
committee. 

The  following  extracts  are  made  from  the  opinion 
of  the  court : 

"  The  present  suit  is  by  the  minor,  for  her  alleged 
wrongful  exclusion  from  school  in  consequence  of 
her  refusal  to  read  in  one  of  the  books  directed  by 
the  defendants,  who  are  the  superintending  school 


SCHOOL    OFFICERS   AND    TEACHERS.  25 

committee  of  the  town  of  Ellsworth,  to  be  used  in 
the  school  of  which  she  was  a  member.  .  .  . 

"By  the  act  of  1850,  c  193,  art.  5,  §  1,  the  pow- 
ers and  duties  of  superintending  school  committees 
are  denned  and  established,  and  the  authority  is 
given  them  '  to  expel  from  any  school  any  obsti- 
nately disobedient  and  disorderly  scholar,  after  a 
proper  investigation  of  his  behavior,  if  found  neces- 
sary for  the  peace  and  usefulness  of  the  school ;  also, 
to  restore  him  to  the  school  on  satisfactory  evidence 
of  his  repentance  and  amendment.'  .  .  . 

"By  the  act  before  referred  to,  under  art.  5,  §  1, 
among  various  powers  and  duties  conferred  upon  the 
superintending  school  committee,  they  are  empow- 
ered, '  fourthly,  to  direct  the  general  course  of  in- 
struction, and  what  books  shall  be  used  in  the  re- 
spective schools.' 

"  The  right  to  prescribe  the  general  course  of  in- 
struction and  to  direct  what  books  shall  be  used 
must  exist  somewhere.  The  legislature  have  seen 
fit  to  repose  the  authority  to  determine  this  in  the 
several  superintending  school  committees.  They 
may  therefore  rightfully  exercise  it. 

"  The  power  thus  conferred  is  in  the  most  literal 
and  explicit  terms.  The  power  of  establishing  by- 
laws is  given  to  the  several  city  governments  of  the 
state.  This  court  is  authorized  to  establish  rules 
for  the  regulation  of  business  in  court.  The  only 
restriction  in  either  case  is  that  the  by-laws  and  rules, 


26  POWER    AND    AUTHORITY    OF 

thus  established,  shall  not  conflict  with  the  statutes 
and  Constitution  of  the  state.  Within  these  limits 
they  have  all  the  force  and  vigor  of  legislative  en- 
actments. So,  in  this  case,  the  same  general  and 
extensive  power  over  the  subject-matter  is  granted  ; 
and  the  course  of  studies,  and  the  books  prescribed 
by  the  superintending  school  committee  are  to  be 
regarded  as  if  established  and  prescribed  by  the  act 
of  the  legislature. 

"  The  power  of  selection  is  general  and  unlimited. 
It  is  vested  in  the  committee  of  each  town.  .  .  . 
The  manner  of  its  exercise  must  depend  upon  the 
judgment,  discretion,  and  intelligence  of  the  different 
committees.  The  actual  selection  at  any  given  time 
and  place  depends  upon  the  views  and  opinions  of 
those  upon  whom  the  law  devolves  this  duty.  The 
power  of  ultimate  decision  must  rest  somewhere. 
No  right  of  appeal  is  granted.  No  power  of  revis- 
ion is  conferred  upon  any  other  tribunal.  Because 
the  right  of  selection  may  be  injudiciously  or  un- 
wisely exercised,  it  by  no  means  follows  that  it  does 
not  exist.  This  court  cannot  make  an  affirmative 
rule  as  to  what  books  shall  be  selected,  nor  a  nega- 
tive rule  prescribing  what  shall  not  be  used,  if  the 
right  to  selection  be  exercised  in  conformity  with  ex- 
isting statutes  and  the  Constitution.  The  power  of 
selection  includes  that  of  making  injudicious  and  ill- 
advised  selections,  but,  there  being  no  right  of  ap- 
peal, the  selection  is  binding  and  conclusive.  .  .  . 


SCHOOL    OFFICERS    AND    TEACHERS.  27 

"  If  the  right  to  direct  the  course  of  instruction  and 
the  books  to  be  used  is  given,  the  right  to  enforce 
obedience  to  the  determining  power  must  manifest- 
ly exist  or  the  determination  will  be  ineffectual.  It 
would  be  worse  than  idle  to  grant  this  power  to 
direct,  if  any  one  can  set  at  naught  the  action  of  the 
committee. 

"  The  committee  may  enforce  obedience  to  all  reg- 
ulations within  the  scope  of  their  authority.  If  they 
may  select  a  book,  they  may  require  the  use  of  the 
book  selected.  If  the  plaintiff  may  refuse  reading 
in  one  book,  she  may  in  another,  unless,  for  some 
cause,  she  is  exempted  from  the  duty  of  obedience. 
If  she  may  decline  to  obey  one  requirement,  right- 
fully made,  then  she  may  another,  and  the  disci- 
pline of  the  school  is  at  an  end.  It  is  for  the 
committee  to  determine  what  misconduct  requires 
expulsion.  That  is  expressly  left  to  their  determina- 
tion. .  .    . 

"  The  plaintiff  seeks  to  avoid  these  conclusions  by 
denying  that  the  book  selected  was  one  in  which  she 
could  be  constitutionally  compelled  to  read  upon 
pain  of  expulsion,  in  case  of  her  refusal  to  obey. 
She  claims  exemption  from  the  general  duty  of  obe- 
dience from  the  particular  character  of  the  book  in 
which  she  was  required  to  read.  The  question,  there- 
fore, is  whether,  if  the  legislature  should  by  statute 
direct  any  version  of  the  Bible  to  be  read  in  schools, 
and  should  impose  the  penalty  of  expulsion,  in  the 


28  POWER    AND    AUTHORITY    OF 

case  of  refusal,  such  statute  would  be  a  violation  of 
the  Constitution.  The  use  of  the  Bible  as  a  reading- 
book  is  not  prohibited  by  any  express  language  of 
the  Constitution. 

"  Is  its  use  for  that  purpose  in  opposition  to  the 
spirit  and  intention  of  that  instrument  ?  If  it  be 
not,  if  it  be  a  book  which  may  be  directed,  within 
the  spirit  and  meaning  of  the  Constitution,  to  be 
used  in  schools,  it  is  obvious  that  its  use  may  be  re- 
quired by  all ;  for  a  regulation  which  any  scholar 
may  violate  with  impunity  would  cease  to  have  the 
force  and  effect  of  a  rule.  .  .  . 

"  But  the  instruction  here  given  is  not  in  fact,  and 
is  not  alleged  to  have  been,  in  articles  of  faith.  No 
theological  doctrines  were  taught.  The  creed  of  no 
sect  was  affirmed  or  denied.  The  truth  or  falsehood 
of  the  book  in  which  the  scholars  were  required  to 
read  was  not  asserted.  No  interference  by  way  of 
instruction,  with  the  views  of  the  scholars,  whether 
derived  from  parental  or  sacerdotal  authority,  is 
shown.  .  .  . 

"...  The  plaintiff,  indeed,  makes  no  objection  to 
the  Bible  as  a  book  which  she  may  not  rightfully  be 
required  to  read  in  schools,  but  only  to  a  particular 
translation.  Indeed,  the  report  finds  that  she  was 
willing  to  read  from  the  Douay  version.  It  is  ap- 
parent that  it  is  highly  desirable  that  in  the  same 
class  there  should  be  a  uniformity  of  books  to  be 
used.     But  if  the  book  is  proper,  if  consonant  to  the 


SCHOOL    OFFICERS    AND    TEACHERS.  29 

soundest  principles  of  morality,  then  is  there  any 
translation  which  can  be  justly  deemed  adverse  to 
those  principles?  Does  the  version  in  -which  the 
plaintiff  was  willing  to  read  contravene  sound  moral- 
ity, even  in  the  judgment  of  the  defendants  ?  Does 
the  version  which  the  defendants  required  to  be  read 
conflict,  even  in  the  opinion  of  the  plaintiff,  with 
pure  morality  ?  If  not,  then  the  book  itself,  alike 
in  the  judgment  of  the  plaintiff  and  defendants,  is 
one  which  may  be  read  without  reasonable  grounds 
of  objection  in  schools.  .  .  . 

"  Such  being  the  case,  all  that  is  shown  by  the  se- 
lection of  one  version  is  simply  a  preference  of  one 
over  another  when  there  must,  from  necessity,  be  a 
difference  of  opinion.  But  in  case  of  numerous 
translations  of  a  work,  in  itself  unobjectionable,  a 
preference  may  be  expressed  and  acted  upon  with- 
out infringing  upon  the  just  rights  of  others. 

"  All  that  is  done  is,  that  a  committee  for  the  time 
being  prefer  one  to  another.  Both,  undoubtedly, 
may  be  used  in  schools,  or  both  may  be  excluded 
therefrom.  .  .  . 

But  the  claim  of  the  plaintiff  is  much  more  liable 
to  the  exception  that  it  is  creating  the  subordination 
or  preference  of  one  sect  or  denomination  over  an- 
other. Her  claim  to  be  exempted  from  a  general 
regulation  of  the  school  rests  entirely  on  her  relig- 
ious belief,  and  is  to  the  extent  that  the  choice  of 
reading-books  shall  be  in  entire  subordination  to  her 


30  POWER    AND    AUTHORITY    OF 

faith,  and  because  it  is  her  faith.  The  preference 
is  manifestly  given,  if,  in  the  selection  to  be  made, 
the  defendants  were  bound  to  defer  to  the  doctrines 
and  authority  and  teachings  of  the  sect  of  which 
she  is  a  member.  The  right  of  negation  is,  in  its 
operation,  equivalent  to  that  of  proposing  and  es- 
tablishing. The  right  of  one  sect  to  interdict  or 
expurgate  would  place  all  schools  in  subordination 
to  the  sect  interdicting  or  expurgating. 

"  If  the  claim  is  that  the  sect  of  which  the  child 
is  a  member  has  the  right  of  interdiction,  and  that 
any  book  is  to  be  banished  because  under  the  ban 
of  her  Church,  then  the  preference  is  practically  giv- 
en to  such  Church,  and  the  very  mischief  complained 
of  is  inflicted  on  others.  .  .  . 

"  The  case  finds  that  the  authorities  of  the  sect  of 
which  the  plaintiff  is  a  member  regard  it  sinful  to 
read  in  the  version  directed  by  the  defendants ;  but 
if  a  book  is  to  be  excluded  for  that  cause  in  one 
instance,  it  must  be  in  all,  and  the  use  of  books 
would  be  made  to  depend,  not  upon  the  judgment 
of  those  to  whom  the  law  intrusts  their  selection, 
but  upon  that  of  the  authorities  of  a  Church,  so  that 
each  sect  would  have  precedence  as  a  sect  and  for 
that  cause. 

"  From  the  report,  it  appears  that  the  plaintiff,  from 
conscientious  religious  scruples,  refused  to  read  in 
the  version  designated  by  the  defendants  as  the  one 
to  be  used,  and  that  she  and  her  father  both   re- 


SCHOOL    OFFICERS    AND    TEACHERS.  31 

gardcd  it  as  sinful  so  to  do,  both  having  been  so 
taught  by  the  authorities  of  the  Church  of  which 
they  are  members. 

"As  the  suit  is  by  the  child,  as  her  rights  only 
are  alleged  to  be  violated,  the  conscientious  religious 
views  of  the  father  are  not  involved  in  the  deter- 
mination of  this  suit.  He  is  no  party  to  it,  for  the 
purpose  of  obtaining  compensation,  nor  is  it  brought 
on  account  of  any  infraction  of  his  rights.  The 
real  inquiry  is,  whether  any  book  opposed  to  the 
real  or  asserted  conscientious  views  of  a  scholar  can 
be  legally  directed  to  be  used  as  a  school-book,  in 
which  such  scholar  can  be  required  to  read.  The 
claim,  on  the  part  of  the  plaintiff,  is  that  each  and 
every  scholar  may  set  up  its  own  conscience  as  over 
and  above  the  law.  It  is  a  claim  of  an  exemption 
from  a  general  law  because  it  may  conflict  with  the 
particular  conscience. 

"  The  action  being  by  the  scholar,  the  invasion  be- 
ing of  its  rights,  it  is  apparent  that  if  the  fact  of 
opposition  to  conscience  on  the  part  of  a  child  af- 
fords a  well-grounded  reason  for  its  exemption  from 
the  general  rules  of  the  school — that  it  may  operate 
to  the  exclusion  of  books  to  an  indefinite  extent. 
As  the  existence  of  conscientious  scruples  as  to  the 
reading  of  a  book  can  only  be  known  from  the  as- 
sertion of  the  child,  its  mere  assertion  must  suffice 
for  the  exclusion  of  any  book  in  the  reading  or  in 
the  hearing  of  which  it  may  allege  a  wrong  to  be 


32  POWER    AND    AUTHORITY    OF 

done  to  its  religious  conscience.  The  claim,  so  far 
as  it  may  rest  on  conscience,  is  a  claim  to  annul  any 
regulation  of  the  state  made  by  its  constituted  au- 
thorities. As  a  right  existing  on  the  part  of  one 
child  it  is  equally  a  right  belonging  to  all.  As  it 
relates  to  one  book,  so  it  may  apply  to  another — 
whether  relating  to  conscience  or  to  morals.  Error 
may  reach  the  understanding  by  the  hearing  equally 
as  by  the  vision,  by  the  ear  as  by  the  eye.  As  the 
child  may  object  to  reading  any  book,  so  it  may 
equally  object  to  hearing  it  read,  for  the  same  cause ; 
and  thus  the  power  of  selection  of  books  is  with- 
drawn from  those  to  whom  the  law  intrusts  it,  and 
by  the  right  of  negation  is  transferred  to  the  schol- 
ars. 

"The  right,  as  claimed,  undermines  the  power  of 
the  state.  It  is  that  the  will  of  the  majority  shall 
bow  to  the  conscience  of  the  minority,  or  of  one. 
If  the  several  consciences  of  the  scholars  are  per- 
mitted to  contravene,  obstruct,  or  annul  the  action 
of  the  state,  then  power  ceases  to  reside  in  majori- 
ties, and  is  transferred  to  minorities.  Nor  is  this 
all.  While  the  laws  are  made  and  established  by 
those  of  full  age,  the  right  of  obstruction,  of  inter- 
diction, is  given  to  any  and  all  children,  of  how- 
ever so  immature  an  age  or  judgment." 


SCHOOL    OFFICERS    AND    TEACHERS.  33 

Vermont,  1859.— Guernsey  v.  Pitkin,  32  Vt.  226. 

A  teacher  of  a  district  school  in  Vermont  required 
that  all  scholars  in  grammar  should  write  English 
composition,  although  not  mentioned  in  the  list  of 
studies  required  hy  law  to  be  taught.  A  boy  named 
Guernsey  declined  to  yield  to  this  rule,  and  the 
teacher  informed  the  committee.  The  committee 
visited  the  school,  talked  with  the  boy,  and  told  the 
teacher  he  would  see  the  boy's  father,  and  if  the  fa- 
ther sent  word  that  he  did  not  wish  his  boy  to  write 
compositions,  she  could  excuse  him.  The  boy  came 
to  school  the  next  day,  but  without  an  excuse.  The 
teacher  sent  him  to  his  father  to  see  if  he  had  not 
some  word  to  send  her  on  the  subject.  The  parent 
returned  answer  that  if  she  had  any  business  with 
him  she  must  call  upon  him.  The  committee  then 
told  the  boy  he  must  not  attend  the  school  unless 
he  would  obey  the  regulations,  and  instructed  the 
teacher  not  to  treat  him  as  a  scholar  unless  he 
obeyed  her  rule  as  above,  or  she  received  a  request 
from  his  father  to  excuse  him.  The  boy  continued 
to  attend  the  school  for  about  three  weeks,  but  the 
teacher  would  not  hear  him  in  recitation,  or  assist 
him  in  his  lessons.  He  then  left  the  school  and 
sued  the  committee. 

The  action  of  the  committee  was  upheld  by  the 
courts.  The  lower  court  ruled  that  the  requirement 
of  the  teacher  in  regard  to  compositions  was  reason- 
3 


34  POWER    AND    AUTHORITY    OF 

able  and  proper,  and  that  by  judicious  means  she 
endeavored  to  induce  the  pupil  to  comply  therewith, 
and  that  there  was  no  sufficient  reason  for  his  not 
complying  with  it.  This  ruling  was  sustained  by 
the  Supreme  Court,  from  the  opinion  of  which  the 
following  extracts  are  made: 

"  But  in  regard  to  those  branches  which  are  re- 
quired to  be  taught  in  the  public  schools,  the  pru- 
dential committee  and  the  teacher  must,  of  necessity, 
have  some  discretion  as  to  the  order  of  teaching 
them,  the  pupils  who  shall  be  allowed  to  pursue 
them,  and  the  mode  in  which  they  shall  be  taught. 
If  this  were  not  so  it  would  be  impossible  to  classi- 
fy the  pupils,  or  for  one  teacher  to  attend  to  more 
than  ten  or  twelve  pupils. 

"  With  this  concession  to  the  teacher  of  fixing 
the  mode  of  teaching  these  branches,  it  seems  very 
obvious  that  English  composition  may  fairly  be  re- 
garded as  an  allowable  mode  of  teaching  many  of 
these  branches." 

Wisconsin,  1874. — Morrow  v.  Wood,  35  Wis.  59. 

In  1874  a  case  arose  in  Wisconsin  the  decision 
in  which  has  been  widely  discussed  and  variously 
commented  upon.  A  man  named  Wood  sent  his 
son,  a  boy  about  twelve  years  of  age,  to  school.  He 
wished  him  to  study  orthography,  reading,  and  writ- 
ing, and  also  wished  him  to  give  particular  attention 
to  the  study  of  arithmetic.     In  addition  to  these 


SCHOOL    OFFICERS    AND    TEACHERS.  35 

studies,  the  teacher,  named  Morrow,  at  once  required 
the  child  to  study  geography.  The  father,  on  be- 
ing informed  of  this,  told  his  boy  not  to  study  geog- 
raphy, but  to  attend  to  his  other  studies;  and  the 
teacher  was  promptly  and  fully  advised  of  this  wish 
of  the  parent,  and  also  knew  that  the  boy  had  been 
forbidden  by  his  parent  from  taking  that  study  at 
that  time.  But,  claiming  and  insisting  that  she  had 
the  right  to  direct  and  control  the  boy  in  respect  to 
his  studies,  even  as  against  his  father's  orders,  she 
commanded  him  to  take  his  geography  and  get  his 
lesson.  And  when  the  boy  refused  to  obey  her, 
and  did  as  he  was  directed  by  his  father,  she  resort- 
ed to  force  to  compel  obedience.  The  father  insti- 
tuted a  criminal  action  against  her  for  the  assault 
on  his  boy.  She  afterwards  sued  the  father,  com- 
plaining that  the  suit  against  her  for  the  assault  was 
malicious  prosecution.  The  jury  in  the  lower  court 
was  instructed  that  the  order  given  by  the  father  to 
his  son  not  to  study  geography  "  did  not  annul  or 
abridge  the  right  of  the  teacher  to  control  that  mat- 
ter ;"  "  that  under  the  circumstances,  as  proved,  she, 
the  plaintiff,  had  a  right  to  require  the  scholar's 
obedience;"  and  that  the  infliction  of  the  punish- 
ment was  justifiable  if  "  reasonable  and  commensu- 
rate with  the  boy's  contumacy."  The  judgment  in 
the  lower  court  was  in  favor  of  the  teacher,  but  in 
the  Supreme  Court  this  judgment  was  reversed,  and 
the  following  decision  made : 


36  POWER    AND    AUTHORITY    OF 

"...  And  whether  she  had  or  had  not  the  power 
to  correct  him  is  the  question  in  the  case ;  for  it  is 
not  pretended  that  the  boy  was  otherwise  disobe- 
dient, or  was  guilty  of  any  misconduct,  or  violated 
any  rule  or  regulation  adopted  for  the  government 
of  the  school.  The  circuit  court,  in  considering 
the  relative  rights  and  duties  of  parent  and  teacher, 
among  other  things,  told  the  jury  that  when  a  par- 
ent sent  his  child  to  a  district  school  he  surren- 
dered to  the  teacher  such  authority  over  his  child 
as  is  necessary  to  the  proper  government  of  the 
school,  the  classification  and  instruction  of  the  pu- 
pils, including  what  studies  each  scholar  shall  pur- 
sue, these  studies  being  such  as  are  required  by  law, 
or  are  allowed  to  be  taught  in  public  schools.  And 
the  court  added,  in  this  connection,  that  a  prudent 
teacher  will  always  pay  proper  respect  to  the  wish- 
es of  the  parent  in  regard  to  what  studies  the  child 
should  take,  but,  where  the  difference  of  view  was 
irreconcilable  on  the  subject,  the  views  of  the  par- 
ent in  that  particular  must  yield  to  those  of  the 
teacher,  and  that  the  parent,  by  the  very  act  of  send- 
ing his  child  to  school,  impliedly  undertakes  to  sub- 
mit all  questions  in  regard  to  study  to  the  judgment 
of  the  teacher.  In  our  opinion  there  is  a  great  and 
fatal  error  in  this  part  of  the  charge,  particularly 
when  applied  to  the  facts  in  this  case,  in  asserting 
or  assuming  the  law  to  be  that,  upon  an  irreconcila- 
ble difference  of  views  between  the  parent  and  teach- 


SCHOOL    OFFICERS    AND    TEACHERS.  37 

er  as  to  what  studies  the  child  shall  pursue,  the  au- 
thority of  the  teacher  is  paramount  and  controlling, 
and  that  she  had  the  right  to  enforce  obedience  to 
her  commands  by  corporal  punishment.  We  do  not 
think  she  had  any  such  right  or  authority,  and  we 
can  see  no  necessity  for  clothing  the  teacher  with 
any  such  arbitrary  power.  We  do  not  really  un- 
derstand that  there  is  any  recognized  principle  of 
law,  nor  do  we  think  there  is  any  rule  of  morals  or 
social  usage,  winch  gives  the  teacher  an  absolute 
right  to  prescribe  and  dictate  what  studies  a  child 
shall  pursue,  regardless  of  the  wishes  or  views  of 
the  parent,  and,  as  incident  to  this,  gives  the  right 
to  enforce  obedience  even  as  against  the  orders  of 
the  parent.  From  what  source  does  the  teacher  de- 
rive this  authority  ?  From  what  maxim  or  rule  of 
the  law  of  the  land?  Ordinarily,  it  will  be  con- 
ceded, the  law  gives  the  parent  the  exclusive  right 
to  govern  and  control  the  conduct  of  his  minor  chil- 
dren, and  he  has  the  right  to  enforce  obedience  to 
his  commands  by  moderate  and  reasonable  chastise- 
ment. And,  furthermore,  it  is  one  of  the  earliest 
and  most  sacred  duties  taught  the  child  to  honor 
and  obey  its  parents.  The  situation  of  the  child  is 
truly  lamentable  if  the  condition  of  the  law  is  that 
he  is  liable  to  be  punished  by  the  parent  for  diso- 
beying his  orders  in  regard  to  his  studies,  and  the 
teacher  may  lawfully  chastise  him  for  not  disobeying 
his  parent  in  that  particular.     And  yet  this  was  the 


IW 


38  POWER    AND    AUTHORITY    OF 

precise  dilemma  in  which  the  defendant's  boy  was 
placed  by  the  asserted  authority  on  the  part  of  the 
parent  and  the  teacher. 

"  Now  we  can  see  no  reason  whatever  for  denying 
to  the  father  the  right  to  direct  what  studies,  in- 
cluded in  the  prescribed  course,  his  child  shall  take. 
He  is  as  likely  to  know  the  health,  temperament, 
aptitude,  and  deficiencies  of  his  child  as  the  teacher, 
and  how  long  he  can  send  him  to  school.  All  these 
matters  ought  to  be  considered  in  determining  the 
question  what  particular  studies  the  child  should 
pursue  at  a  given  term.  And  where  the  parent's 
wishes  were  reasonable,  as  they  seem  to  have  been 
in  the  present  case,  and  the  teacher,  by  regarding 
them,  could  in  no  way  have  been  embarrassed,  her 
conduct  in  not  respecting  the  order  given  the  boy 
was  unjustifiable.  If  she  had  allowed  the  child  to 
obey  the  commands  of  his  father  it  could  not  pos- 
sibly have  conflicted  with  the  efficiency  or  good  or- 
der or  well-being  of  the  school.  The  parent  did  not 
propose  to  interfere  with  the  gradation  or  classifica- 
tion of  the  school,  or  with  any  of  its  rules  and  reg- 
ulations, further  than  to  assert  his  right  to  direct 
what  studies  his  boy  should  pursue  that  winter. 
And  it  seems  to  us  a  most  unreasonable  claim  on 
the  part  of  the  teacher  to  say  that  the  parent  has 
not  that  right,  and,  further,  to  insist  that  she  was 
justified  in  punishing  'the  child  for  obeying  the  or- 
der of  his  father  rather  than  her  own.     Whence, 


BCHOOL    OFFICERS    AND    TEACHERS.  39 

we  again  inquire,  did  the  teacher  derive  this  exclu- 
sive and  paramount  authority  over  the  child,  and 
the  right  to  direct  his  studies  contrary  to  the  wish 
of  the  father?  It  seems  to  us  it  is  idle  to  say  the 
parent,  by  sending  his  child  to  school,  impliedly 
clothes  the  teacher  with  that  power  in  a  case  where 
the  parent  expressly  reserves  the  right  to  himself, 
and  refuses  to  submit  to  the  judgment  of  the  teach- 
er the  question  as  to  what  studies  his  boy  should 
pursue.  We  do  not  intend  to  lay  down  any  rule 
which  will  interfere  with  any  reasonable  regulation 
adopted  for  the  management  and  government  of  the 
public  schools,  or  which  will  operate  against  their 
efficiency  and  usefulness.  Certain  studies  are  re- 
quired to  be  taught  in  the  public  schools  by  statute. 
The  rights  of  one  pupil  must  be  so  exercised,  un- 
doubtedly, as  not  to  prejudice  the  equal  rights  of 
others.  But  the  parent  has  the  right  to  make  a 
reasonable  selection  from  the  prescribed  studies  for 
liis  child  to  pursue,  and  this  cannot  possibly  conflict 
with  the  equal  rights  of  other  pupils.  In  the  pres- 
ent case  the  defendant  did  not  insist  that  his  child 
should  take  any  study  outside  of  the  prescribed 
course.  But,  considering  that  the  study  of  geogra- 
phy was  less  necessary  for  his  boy  at  that  time  than 
some  other  branches,  he  desired  him  to  devote  all 
his  time  to  orthography,  reading,  writing,  and  arith- 
metic. The  father  stated  that  he  thought  these 
studies  were  enough  for  the  child  to  take ;  and  he 


40  POWER    AND    AUTHORITY    OF 

said  he  was  anxious  the  boy  should  obtain  a  good 
knowledge  of  arithmetic  in  order  that  he  might  as- 
sist in  keeping  accounts. 

"  He  wished  to  exercise  some  control  over  the 
education  of  his  son,  and  it  is  impossible  to  say 
that  the  choice  of  studies  which  he  made  was  un- 
reasonable or  inconsistent  with  the  welfare  and  best 
interest  of  his  offspring.  And  how  it  will  result 
disastrously  to  the  proper  discipline,  efficiency, 
and  well-being  of  the  common  schools  to  concede 
this  paramount  right  to  the  parent  to  make  a  rea- 
sonable choice  from  the  studies  in  the  prescribed 
course  which  his  child  shall  pursue  is  a  proposition 
we  cannot  understand.  The  counsel  for  the  plain- 
tiff so  insist  in  their  argument,  but,  as  we  think, 
without  warrant  for  the  position.  It  is  unreason- 
able to  suppose  any  scholar  who  attends  school 
can  or  will  study  all  the  branches  taught  in  them. 
From  the  nature  of  the  case  some  choice  must  be 
made,  and  some  discretion  be  exercised  as  to  the 
studies  which  the  different  pupils  shall  pursue.  The 
parent  is  quite  as  likely  to  make  a  wise  and  judi- 
cious selection  as  the  teacher.  At  all  events,  in  case 
of  a  difference  of  opinion  between  the  parent  and 
the  teacher  upon  the  subject,  we  see  no  reason  for 
holding  that  the  views  of  the  teacher  must  prevail, 
and  that  she  has  the  right  to  compel  obedience  to 
her  orders  by  inflicting  corporal  punishment  upon 
the  pupil.     The  statute  gives  the  school  board  pow- 


SCHOOL    OFFICERS    AND    TEACHERS.  41 

er  to  make  all  needful  rules  and  regulations  for 
the  organization,  gradation,  and  government  of  the 
school,  and  power  to  suspend  any  pupil  from  the 
privileges  of  the  school  for  noncompliance  with  the 
rules  established  by  them,  or  by  the  teacher  with 
their  consent ;  and  it  is  not  proposed  to  throw  any 
obstacle  in  the  way  of  the  performance  of  these  du- 
ties. But  these  powers  and  duties  can  be  well  ful- 
filled without  denying  to  the  parent  all  right  to  con- 
trol the  education  of  his  children. 

"  These  views  are  decisive  of  this  case.  Under 
the  circumstances  the  plaintiff  had  no  right  to  pun- 
ish the  boy  for  obedience  to  the  commands  of  his 
father  in  respect  to  the  study  of  geography.  She 
entirely  exceeded  any  authority  which  the  law  gave 
her,  and  the  assault  upon  the  child  was  unjustifia- 
ble." 

Illinois,  18lo.—Ruliso?i  v.  Post,  79  111.  567. 

One  Frances  S.  Post  attended  a  district  school  in 
Illinois,  and  was  in  a  class  which,  by  the  course  of 
study  prescribed  by  the  directors,  was  required  to 
study  book-keeping.  She  was  requested  by  the 
principal  of  the  school  to  procure  books  for  the 
purpose,  but  declined,  saying  her  father  objected  to 
her  studying  it.  She  was  notified,  as  were  also  her 
parents,  that  unless  she  complied  with  the  rule  she 
would  be  expelled  from  the  school.  On  going  to 
the  school  without  the  book  she  was  told  her  rights 
as  a  scholar  had  ceased,  and  she  was  requested  to 


42  POWER    AND    AUTHORITY    OF 

leave,  but,  declining,  the  teacher  took  hold  of  her 
and  led  or  pushed  her  out  of  the  building.  She 
returned  to  the  room  and  was  again  ejected.  She 
instituted  an  action  against  the  teacher  and  direc- 
tors for  trespass,  and  the  jury  gave  her  a  verdict, 
and  assessed  damages  at  $130. 

Book-keeping  was  not  one  of  the  studies  enumer- 
ated in  the  law  to  be  taught,  but  was  prescribed  un- 
der a  provision  of  the  law  which  allowed  the  teach- 
ing of  other  branches  than  those  enumerated.  The 
Supreme  Court  sustained  the  above  verdict.  The 
reasons  given  therefor  are  contained  in  the  follow- 
ing extracts  from  the  opinion  : 

"  The  school  law  [reciting  it]  under  which  these 
directors  derived  their  powers  and  were  then  acting 
provides  that  the  school  directors  '  may  direct  what 
branches  of  study  shall  be  taught,  and  what  text- 
books shall  be  used  in  their  respective  schools,  and 
may  suspend  or  expel  pupils  for  disobedient,  refrac- 
tory, or  incorrigibly  bad  conduct.'  *  The  next  sec- 
tion provides  that  no  teacher  shall  be  authorized  to 
teach  a  school  under  that  act  who  is  not  qualified 
to  teach  orthography,  reading  in  English,  penman- 
ship, arithmetic,  English  grammar,  modern  geogra- 
phy, and  the  history  of  the  United  States  ;  and  the 
same  section  requires  that  such  teacher  shall  be  ex- 
amined by  the  county  superintendent  of  schools,  and 

*  For  the  law  at  present  see  Appendices  B  and  C. 


SCHOOL    OFFICERS    AND    TEACHERS.  43 

if  found  to  be  qualified  shall  be  given  a  certificate 
of  that  fact.  The  same  section  contains  this  pro- 
viso, '  that  nothing  herein  contained  shall  prevent 
the  teaching  in  the  common  schools  of  other  and 
higher  branches  than  those  enumerated  in  this  sec- 
tion.' From  these  enactments  it  is  manifest  that  it 
was  the  design  of  the  lawmakers  that  all  of  the 
children  of  the  state  should  be  afforded  an  oppor- 
tunity to  acquire,  free  of  charge,  a  knowledge  of 
the  enumerated  branches  required  to  be  taught.  .  .  . 

"  In  the  performance  of  their  duty  in  carrying 
the  law  into  effect  the  directors  may  prescribe  prop- 
er rules  and  regulations  for  the  government  of  the 
schools  of  their  district,  and  enforce  them.  They 
may,  no  doubt,  classify  the  scholars,  regulate  their 
studies  and  their  deportment,  the  hours  to  be  taught, 
besides  the  performance  of  other  duties  necessary  to 
promote  the  success  and  secure  the  well-being  of 
such  schools.  But  all  such  rules  and  regulations 
must  be  reasonable  and  calculated  to  promote  the 
objects  of  the  law — the  conferring  of  such  an  edu- 
cation upon  all,  free  of  charge.    .   .   . 

"  The  law,  for  the  purpose  of  preserving  the  school 
and  promoting  its  usefulness,  has  empowered  the 
directors  to  suspend  or  expel  scholars,  but  only  for 
disobedient,  refractory,  or  incorrigibly  bad  conduct. 
It  is  by  the  commission  of  one  of  these  acts  alone 
that  the  pupil  can  forfeit  his  right  to  the  privileges 
of  the  school ;  and  this  forfeiture  can  only  be  en- 


44  POWER    AND    AUTHORITY    OF 

forced,  and  the  right  lost,  after  all  other  reasonable 
means  have  failed.  .  .  . 

"  As  to  the  means  the  directors  may  employ  for  the 
purpose  of  imparting  knowledge  in  the  enumerated 
branches,  and  the  extent  of  their  power  to  compel 
the  pupils  to  study  all  of  them,  or  whether  that  is 
optional  with  the  parent  or  guardian,  we  do  not 
pretend  to  decide  in  this  case.  That  question  is 
not  presented  by  this  record,  nor  has  it  been  dis- 
cussed by  counsel ;  we  therefore  pass  it  over  until  it 
is  properly  presented.  The  question  here  presented 
is  whether  the  power  has  been  granted  the  direc- 
tors to  compel  scholars  to  study  other  and  higher 
branches  than  those  enumerated  in  the  law.   .  .  . 

"  They  may  undeniably  require  the  teacher  to  im- 
part instruction  in  other  and  higher  branches  than 
those  enumerated,  but  that  is  discretionary,  and,  be- 
ing discretionary,  they  cannot  be  compelled  to  make 
the  requirement;  it  is  only  permissive  to  the  direc- 
tors, and  is  optional  with  parents,  guardians,  or  pu- 
pils whether  the  scholars  shall  study  such  branches, 
and,  being  optional,  pupils  cannot  be  compelled  to 
pursue  such  studies  without  the  assent  of  the  parent 
or  guardian,  or  their  own  consent." 

Ohio,  18l6.—Sewett  v.  Board  of  Ed.,  29  0.  St.  Rep.  89. 

The  School  Board  of  Defiance,  Ohio,  prescribed 
the  study  of  rhetoric,  and  one  of  the  rules  adopted 
by  the  board  for  the  government  of  the  schools 


SCHOOL    OFFICERS    AND    TEACHERS.  45 

provided  that  if  any  pupil  should  fail  to  be  pre- 
pared in  this  study  he  or  she  should,  unless  ex- 
cused on  account  of  sickness  or  other  good  cause, 
be  suspended.  A  boy  named  Andrew  Sewell  re- 
fused to  comply  with  the  rule  or  offer  an  excuse, 
and  the  teacher,  with  the  consent  of  the  board,  sus- 
pended him  until  he  should  comply  with  the  rule  or 
offer  excuse.  The  boy's  father  brought  suit  against 
the  board.  The  Supreme  Court  decided  that  the 
rule  was  a  reasonable  one. 

From  opinion :  "  The  act  under  which  the  com- 
mon schools  of  Defiance  were  organized  gives  to 
the  board  of  education  of  the  town  the  entire  con- 
trol and  management  thereof;  authorizes  the  board 
to  make  and  enforce  all  necessary  rules  and  regula- 
tions for  the  government  of  teachers  and  pupils 
therein,  and  to  determine  '  the  various  studies  and 
parts  of  study'  in  which  instruction  shall  be  given  in 
the  several  departments  thereof. 

"The  act  does  not  direct  how,  or  in  what  man- 
ner, the  rules  and  regulations  which  the  board  may 
adopt  for  the  government  of  the  schools  under  its 
care  and  management  shall  be  enforced,  but  leaves 
the  whole  subject  of  the  making  of  such  rules  and 
their  enforcement  to  the  judgment  and  sound  dis- 
cretion of  the  board.  The  rule  in  question,  for  the 
enforcement  of  which,  in  the  manner  stated,  dam- 
ages are  claimed  by  the  plaintiff  in  this  action,  was, 
in  our  opinion,  reasonable. 


46  POWER    AND    AUTHORITY    OF 

"The  pupil  having  failed  to  comply  with  the  rule, 
the  teacher,  in  excluding  him  from  the  school  until 
he  should  comply  with  it,  or  offer  a  reasonable  ex- 
cuse to  the  board  for  his  non-compliance,  acted  un- 
der the  authority  of  and  with  the  consent  of  the 
board,  and  the  action  of  the  defendants  in  the  prem- 
ises having  been,  as  they  aver  in  their  answer,  in 
their  judgment,  for  the  best  interests  and  welfare  of 
the  school,  they  are  not  liable  in  damages  to  the 
plaintiff  therefor." 

Illinois,  1877.—  Trustees  v.  Tlie  People,  87  111.  303. 

Frank  Van  Allen  was  examined  for  admission  to 
the  free  high -school  of  Lake  View,  Illinois.  He 
passed  examination,  and  was  sufficiently  proficient 
in  all  branches  of  study  except  that  of  grammar  to 
entitle  him,  under  the  regulations,  to  admission. 
He  was  denied  admission  solely  because  of  his  ina- 
bility to  pass  satisfactory  examination  in  grammar. 
His  father  had  forbidden  him  to  study  grammar, 
and  desired  that  he  should  pursue  no  study  which 
necessitated  a  previous  knowledge  of  grammar,  and 
asked  that  he  be  admitted  to  pursue  only  those  stud- 
ies in  which  he  was  sufficiently  proficient  to  entitle 
him  to  admission.  The  school  trustees  refused  his 
request.  He  then  resorted  to  the  courts,  which  de- 
cided the  rule  unreasonable,  and  ordered  the  trus- 
tees to  admit  the  boy. 

From  opinion  :  "  The  powers  and  duties  of  the 


SCHOOL    OFFICERS    AND    TEACHERS.  47 

trustees  being,  with  respect  to  the  high-school,  the 
same  as  those  of  directors  with  respect  to  the  dis- 
trict school,  it  becomes  necessary  to  ascertain  what 
are  the  powers  and  duties  of  directors  with  respect 
to  district  schools.  So  far  as  they  affect  the  ques- 
tion before  us,  they  are,  to  adopt  and  enforce  all 
necessary  rules  and  regulations  for  the  management 
and  government  of  the  schools;  to  direct  what 
branches  of  study  shall  be  taught,  and  what  text- 
books and  apparatus  shall  he  used,  and  to  enforce 
uniformity  of  text -books."  (Rev.  Stat.  1874,  p. 
962-3,  §  48.) 

"  Here,  then,  is  power  to  decide  what  branches  of 
study  shall  be  taught  in  the  high-school,  what  text- 
books shall  be  used,  and  to  prescribe  necessary  rules 
and  regulations  for  the  management  and  govern- 
ment of  the  school ;  but  not  to  decide  what  particu- 
lar branches  of  study,  of  those  decided  to  be  taught, 
shall  be  pursued  by  each  pupil.  Under  the  power 
to  prescribe  necessary  rules  and  regulations  for  the 
management  and  government  of  the  school,  they 
may,  undoubtedly,  require  classification  of  the  pupils 
with  respect  to  the  branches  of  study  they  are  respec- 
tively pursuing,  and  with  respect  to  proficiency  or  de- 
gree of  advancement  in  the  same  branches;  that  there 
shall  be  prompt  attendance,  diligence  in  study,  ami 
proper  deportment.  All  regulations  or  rules  to  these 
ends  are  for  the  benefit  of  all,  and  presumptively  pro- 
motive of  the  interests  of  all.    No  parent  has  the  right 


48  TOWER    AND    AUTHORITY    OF 

to  demand  that  the  interests  of  the  children  of  others 
shall  be  sacrificed  for  the  interests  of  his  child,  and 
he  cannot,  consequently,  insist  that  his  child  shall  be 
placed  or  kept  in  particular  classes,  when  by  so  do- 
ing others  will  be  retarded  in  the  advancement  they 
would  otherwise  make;  or  that  his  child  shall  be 
taught  studies  not  in  the  prescribed  course  of  the 
school,  or  be  allowed  to  use  a  text-book  different 
from  that  decided  to  be  used  in  the  school,  or  that 
he  shall  be  allowed  to  adopt  methods  of  study  that 
interfere  with  others  in  their  studies.  The  rights 
of  each  are  to  be  enjoyed  and  exercised  only  with 
reference  to  the  equal  rights  of  all  others. 

"  But  no  attempt  has  hitherto  been  made  in  this 
state  to  deny,  by  law,  all  control  by  the  parent  over 
the  education  of  his  child.  Upon  the  contrary,  the 
policy  of  our  law  has  ever  been  to  recognize  the 
right  of  the  parent  to  determine  to  what  extent  his 
child  shall  be  educated,  during  minority,  presuming 
that  his  natural  affections  and  superior  opportunities 
of  knowing  the  physical  and  mental  capabilities  and 
future  prospects  of  his  child  will  insure  the  adop- 
tion of  that  course  which  will  most  effectually  pro- 
mote the  child's  welfare.  The  policy  of  the  school 
law  is  only  to  withdraw  from  the  parent  the  right 
to  select  the  branches  to  be  studied  by  the  child,  to 
the  extent  that  the  exercise  of  that  right  would  in- 
terfere with  the  system  of  instruction  prescribed  for 
the  school,  and  its  efficiency  in  imparting  education 
to  all  entitled  to  share  in  its  benefits.  .  .  . 


SCHOOL    OFFICERS    AND    TEACHERS.  49 

"  If  the  relator's  son  Lad  possessed  the  required 
knowledge  of  grammar,  but  would  not  have  been 
compelled  to  further  pursue  that  branch  of  study 
or  to  pursue  any  other  branch  of  study  to  which  a 
knowledge  of  grammar  was  essential,  it  is  impossi- 
ble to  perceive  how  his  position  in  the  high-school, 
so  far  as  it  might  affect  teacher  and  pupils,  would 
bo  different  from  that  he  now  occupies.  He  is 
qualified  to  pursue,  as  a  pupil,  every  branch  of  study 
that  the  relator  desires  that  he  shall  pursue  in  the 
high-school.  If  he  is  qualified  to  go  on  with  the 
studies  selected  by  the  relator,  of  what  consequence 
is  it  that  he  is  ignorant  of  some  branch  of  study 
in  no  manner  connected  with  those  branches?  This 
may,  possibly,  be  a  misfortune  to  Frank  Van  Allen 
— it  surely  cannot  affect  the  government  of  the 
school  or  incommode  the  other  students  or  the 
teachers.  Whether  fortunate  or  unfortunate  to 
him,  however,  it  is  for  the  parent,  not  the  trustees, 
to  direct  the  branches  of  education  he  shall  pursue, 
so  far  as  they  are  taught,  and  he  is,  by  necessary 
preliminary  education,  qualified  to  pursue  them  in 
the  high-school. 

"  It  is  possible  that  a  father  may  have  very  satis- 
factory reasons  for  having  his  son  perfected  in  cer- 
tain branches  of  education  to  the  entire  exclusion 
of  others;  and  so  long  as,  in  exercising  his  parental 
authority  in  making  the  selection  of  the  branches  he 
shall  pursue,  none  others  are  affected,  it  can  be  of 
4 


50  POWER    AND    AUTHORITY    OF 

no  practical  concern  to  those  having  the  public 
schools  in  charge. 

"  We  think  the  exclusion  of  the  relator's  son 
from  the  high-school,  upon  the  ground  alleged,  by 
the  respondents,  unauthorized  by  the  statute.  The 
regulation  requiring  it  is  arbitrary  and  unreason- 
able, and  cannot  be  enforced,  but  must  be  disre- 
garded. 

"  In  Rulison  et  al  v.  Post,  79  III.  567,*  views  were 
expressed  in  harmony  with  what  has  been  here  said, 
although  the  question  there  decided  was  materially 
different  from  that  presented  here. 

"  Morrow  v.  Wood,  35  Wis.  59, f  presents  the  ques- 
tion of  the  right  of  a  teacher  to  punish  a  pupil  for 
refusing,  under  parental  objection,  to  pursue  the 
study  of  geography,  and  the  ruling  was  against  the 
right.  The  opinion  is  able  and  instructive,  and 
demonstrates  to  our  satisfaction  the  correctness  of 
the  conclusion." 

Iowa,  1878.— State  v.  Mizner,  50  Iowa,  152. 

Ada  Buemcr,  a  pupil  in  a  public  school  in  Iowa, 
carried  the  following  notes  from  her  father  to  the 
teacher :  '.'  Please  excuse  Ada  afternoons,  as  her 
health  will  not  permit  her  to  attend  all  the  time," 
and  "  Please  excuse  Ada  from  the  algebra  class,  she 
having  more  lessons  than  she  can  well  attend  to." 

*  Ante,  p.  41.  f  Ante,  p.  34. 


SCHOOL    OFFICERS    AND    TEACHERS.  51 

The  teacher  did  not  excuse  her,  and,  from  her  re- 
fusal to  recite,  a  very  spirited  conversation  was 
carried  on  between  her  and  the  teacher;  and  he 
called  in  a  hickory  stick  to  determine  the  argument. 
He  was  tried  and  convicted  of  an  assault  and  bat- 
tery. There  was  a  conflict  of  testimony  and  opin- 
ion as  to  whether  the  punishment  was  for  the  fail- 
ure to  recite  or  for  her  "  insolent  and  contemptuous 
conduct."  All  views  of  the  case  were  evidently  passed 
upon.  The  value  of  the  case  for  this  collection  of 
decisions  is  found  in  the  following  extract  from  the 
opinion  of  the  Supreme  Court: 

"  If,  therefore,  the  rules  adopted  by  the  teacher 
required  that  the  prosecutrix  should  study  algebra, 
and  be  in  attendance  during  afternoons,  and  that 
proper  discipline  and  the  good  of  the  school,  as 
a  whole,  required  an  enforcement  of  the  rules,  we 
are  constrained  to  think  the  mode  adopted  was 
not  the  proper  one.  Compulsory  education  is  not 
yet  the  rule  in  this  state,  and  instead  of  whipping 
the  prosecutrix  for  failure  to  attend  or  study  alge- 
bra, when  both  she  and  her  father  desired  she 
should  be  excused,  we  think  the  defendant  should 
have  plainly  said  to  both  the  prosecutrix  and  her 
father  that  she  could  not  attend  the  school  unless 
she  was  prepared  to  obey  the  rules  in  this  respect. 
If  a  pupil  attends  school  it  must  be  presumed  he 
submits  himself  to  the  rules;  but  that  is  not  this 
case.     Until   compulsory   education  is   established 


52  POWER    AND    AUTHORITY    OF 

we  are  unwilling  to  sanction  the  rule  that  a  teacher 
may  punish  a  pupil,  as  in  this  case,  for  not  doing 
something  the  parent  has  requested  the  pupil  to  he 
excused  from  doing.  The  remedy  in  such  case  is 
not  corporal  punishment,  but  expulsion." 

New  Hampshire,  18*79. — Kidder  v.  Chellis,  59  N.  II.  473. 

Chellis,  the  defendant,  a  teacher,  was  engaged  by 
the  prudential  committee  to  teach  a  certain  school, 
and  presented  himself  to  the  school  committee  for 
examination.  The  committee-man  asked  him  a  few 
questions;  told  him  he  did  not  have  time  to  ex- 
amine him  then  but  told  him  to  commence  the 
school  and  he  would  send  him  a  certificate  in  a  few 
days.  The  defendant  commenced  school  Jan.  22d, 
1879.  He  divided  the  largest  scholars  into  two 
divisions  for  declaiming  and  writing,  and  fixed  Jan. 
31st  as  the  time  for  the  first  division  to  declaim. 
The  plaintiff,  sixteen  or  eighteen  years  of  age,  was 
to  be  ready  to  speak  on  the  31st.  At  the  appointed 
time  he  was  not  prepared  to  speak,  and  declined  to 
do  so  then,  or  at  any  future  time.  The  teacher 
gave  him  until  Feb.  3d  to  consider  the  matter,  and  if 
he  then  complied  with  the  requirement,  very  well. 
But  if  he  did  not  he  must  leave  school  until  he  could. 
On  Feb.  3d  he  came  to  school  in  the  morning,  but 
refused  to  speak,  and  the  teacher  sent  him  home  to 
stay  until  he  would.  In  the  afternoon  he  returned, 
but  persisted  in  his  refusal  to  conform  with  the  reg- 


SCHOOL    OFFICERS    AND    TEACHERS.  53 

ulation.  The  teacher  then  told  him  he  must  leave, 
took  hold  of  him  and  put  him  out  of  the  school- 
house.  The  effort  was  sharp  and  vigorous,  but  was 
no  more  than  reasonably  necessary  to  overcome  the 
resistance  of  the  plaintiff. 

The  school  committee,  on  the  evening  of  Feb.  3d, 
after  the  affray,  examined  the  defendant,  and  gave 
him  a  certificate,  and  he  kept  the  school  through  ac- 
cording to  his  engagement. 

The  scholar  on  the  morning  and  in  the  evening 
of  Feb.  3d  notified  the  teacher  that,  in  his  refusal 
to  speak,  he  was  acting  according  to  the  directions 
of  his  parcuts. 

The  regulation  as  to  speaking  was  made  by  the 
teacher,  and  was  oral,  and  no  regulations  were  pre- 
scribed by  the  committee  for  the  school. 

Opinion  of  the  court :  "  The  statute  is  peremptory 
that  no  person  shall  be  employed  or  paid  for  services 
as  teacher  until  he  shall  produce  and  deliver  to  the 
prudential  committee  a  certificate  of  the  school  com- 
mittee of  the  town  that  he  is  qualified  to  instruct  in 
the  branches  to  be  taught  in  the  school  which  he  is 
employed  to  teach.  (G.  L.  c.  89,  §  6.)  This  require- 
ment of  the  statute  neither  the  district  nor  the  pru- 
dential committee  can  waive.  (Barr  v.  Deniston,  19 
N.  II.  170.)  It  does  not  necessarily  follow,  however, 
that  the  plaintiff  can  recover  by  reason  of  what  tran- 
spired at  the  time  of  the  affray.  The  defendant  was 
keeping  a  school  in  the  school-house  of  the  district. 


54  POWER    AND    AUTHORITY    OF 

He  sustained  to  the  other  occupants  of  the  house  the 
relation  of  teacher,  and  they  to  him  that  of  scholars. 
The  daily  assemblage  in  the  school-house  for  nearly 
two  weeks  prior  to  the  alleged  assault  was  not  an 
unlawful  meeting.  The  defendant  was  occupied  in 
the  useful  and  highly  honorable  employment  of  giv- 
ing instruction  to  the  youth  of  the  district.  If  the 
instruction  must  be  held  to  have  been  given  gratui- 
tously because  the  school  committee  of  the  town  neg- 
lected to  examine  him  as  to  his  qualifications  and 
give  him  the  proper  certificate  when  he  presented 
himself  for  examination,  the  business  in  which  he 
was  engaged  was  none  the  less  useful  and  honorable, 
nor  was  it  made  thereby  illegal.  He  was  in  the  oc- 
cupation of  the  school-house  for  the  purpose  of  giv- 
ing instruction  to  the  scholars  of  the  district,  with 
the  unrevoked  license  of  the  district,  and  of  its  in- 
habitants. Although  not  a  public  teacher  by  legal 
appointment  he  was  a  teacher  in  fact,  and  his  au- 
thority to  govern  the  school  could  not  be  contested 
by  those  who  sought  to  avail  themselves  of  its  ad- 
vantages. By  placing  their  children  under  his  in- 
struction, parents,  for  the  time  being,  invested  him 
with  the  prerogatives  of  school  government,  and  con- 
ferred upon  him  the  power  to  do  what  was  reason- 
ably necessary  to  maintain  order  and  render  effective 
his  instruction  to  the  school,  and  the  plaintiff's  par- 
ents authorized  him  to  require  of  the  plaintiff  obedi- 
ence to  such  reasonable  rules  as  were  necessary  for 


SCHOOL    OFFICERS    AND    TEACHERS.  55 

the  government  and  instruction  of  the  whole  school. 
Their  directions  that  they  did  not  desire  him  in- 
structed in  public  declamation  did  not  limit  the 
defendant's  authority  as  his  teacher,  because  the  ref- 
eree has  found  that  the  regulation  was  a  reasonable 
and  useful  one  to  the  school.  (The  case  had  been 
referred  to  a  referee  to  find  the  facts.)  They  could 
not  require  the  defendant  to  receive  their  child  un- 
der his  instruction  without  conforming  to  his  rea- 
sonable rules.  The  plaintiff  was  informed  that  he 
must  submit  to  the  rule  in  question  by  declaiming 
on  Feb.  3d,  or  leave  the  school.  By  remaining,  he 
tacitly  consented  to  submit,  and  gave  the  defendant 
authority  to  compel  obedience ;  or  he  was  a  tres- 
passer, and  the  defendant  had  the  right  to  expel 
him.  If  Morrow  v.  Wood,  35  Wis.  59  (see  p.  34), 
sustains  this  action,  we  are  unable  to  follow  the  de- 
cision in  that  case. 

"  Although  the  defendant  was  not,  for  all  purposes, 
the  teacher  of  a  public  school,  he  was  a  teacher  of  a 
public  or  private  school  for  the  purpose  of  govern- 
ing the  school  as  against  persons  who  chose  to  be 
members  of  the  school ;  and  for  any  misgovern- 
ment,  or  maladministration  in  prescribing  studies 
or  requiring  educational  exercises  the  law  provided 
ample  remedies ;  and  a  refusal  to  obey  his  reason- 
able regulations  was  not  a  legal  remedy  for  any  wrong 
of  which  the  plaintiff  complains.  The  defendant 
did  not  expel  the  plaintiff,  but  merely  suspended 


56  POWER    AND    AUTHORITY    OF 

him  until  he  should  comply  with  the  regulations. 
Whether  the  educational  assembly  over  which  the 
defendant  presided  was  a  school  in  fact,  whatever 
legal  qualities  it  might  lack — whether  it  was  a  pub- 
lic or  a  private  school — the  power  of  each  parent  to 
decide  the  question  what  studies  the  scholars  should 
pursue,  or  what  exercises  they  should  perform, 
would  be  a  power  of  disorganizing  the  school,  and 
practically  rendering  it  substantially  useless.  How- 
ever judicious  it  may  be  to  consult  the  wishes  of 
parents,  the  disintegrating  principle  of  parental  au- 
thority to  prevent  all  classification  and  destroy  all 
system  in  any  school,  public  or  private,  is  unknown 
to  the  law. 

"  As  no  unnecessary  force  was  used  to  remove  the 
plaintiff  from  the  house  for  non-compliance  with  a 
reasonable  and  useful  regulation  of  the  school,  the 
plaintiff  cannot  recover,  and  the  defendant  is  en- 
titled to  judgment  on  the  report." 

Note. — It  seems  plain  from  a  careful  study  of  the 
Wisconsin  case  (Morroio  v.  Wood,  ante,  p.  34)  that  the 
Supreme  Court  of  that  state,  in  the  consideration  of 
rights  of  parents  in  the  matter  of  studies  in  the 
schools,  have  removed  the  bound  which  had  seemed 
fixed,  by  common  consent,  if  not  by  the  courts,  to  de- 
termine the  relative  rights  of  parents,  pupils,  and 
school  officers. 

It  is  a  matter  of  some  moment  in  the  administra- 
tion of  common-school  systems,  and  has  merited  and 


SCHOOL    OFFICERS    AND    TEACHERS.  57 

received  much  discussion.  It  may  be  claimed  from 
one  standpoint  that  while  the  above  proposition  is 
admitted — that  the  decision  makes  a  change  of  limits 
— yet  the  decision  is  not  based  upon  law  or  sound 
reason.  From  another  standpoint  the  effect  or  result 
of  the  decision  is  not  only  admitted,  but  assented  to ; 
and  the  decision  supported  as  sound  in  both  law  and 
reason.  There  is  a  third  view  which  admits  the  law 
and  reasoning  of  the  court,  but  claims  that  noth- 
ing new  is  decided  —  that  the  decision  does  not  af- 
fect the  rights  and  powers  of  school  officers  in  gen- 
eral to  prescribe  studies  as  against  the  wishes  of 
parents. 

In  support  of  the  last  view  it  is  claimed  that 
the  decision  turned  upon  the  power  of  the  teacher, 
rather  than  the  right  of  school  officers  or  authorities ; 
and  upon  the  method  of  punishment  employed  by  the 
teacher  in  that  particular  case.  The  Supreme  Court 
of  Vermont,  in  the  case  of  Ferriter  v.  Tyler,  ante,  p. 
10,  seems  to  take  this  position,  and  thus  reviews  the 
case :  "  We  have  carefully  studied  the  Iowa  "  (should  be 
Wisconsin)  "case  of  Morrow  v.  Wood,  before  cited,  and 
not  only  find  nothing  in  conflict  with  the  other  cases 
decided,  but  that  the  ideas  expressed  by  Judge  Cole 
are  in  harmony  with  the  other  cases.  In  that  case 
the  teacher  required  a  boy  to  study  geography.  His 
father,  for  good  reasons,  wanted  him  to  devote  him- 
self to  other  studies,  requiring  all  his  time  and  strength, 
without  geography.  The  boy,  in  obedience  to  his 
father's  direction,  refused  to  study  geography,  and 
the  teacher  whipped  him.  Hence  the  suit.  It  ap- 
pears that  geography  was  one  of  the  studies  required 


58  POWER    AND    AUTHORITY    OF 

by  law  to  be  taught,  but  there  was  no  law  requiring 
any  scholar,  or  any  particular  description  of  scholars, 
to  study  it.  There  was  no  rule  of  the  school,  beside 
the  arbitrary  requirement  of  the  teacher,  which  would 
make  it  the  duty  of  the  boy  to  pursue  that  study. 
Judge  Cole  says,  '  The  statute  gives  the  school  board 
power  to  make  all  needful  rules  and  regulations  for 
the  organization,  gradation,  and  government  of  the 
school,  and  power  to  suspend  any  pupil  from  the 
privileges  of  the  school  for  non-compliance  with  the 
rules  established  by  them,  or  by  the  teacher  with  their 
consent.'  It  does  not  appear,  nor  is  it  inferrible,  that 
the  school  board  had  made  a  rule  requiring  the  boy 
to  study  geography,  or  had  given  their  consent  to  the 
requirement  of  the  teacher.  The  question  then  was, 
whether  the  teacher  had  justifiable  cause  for  whip- 
ping the  boy.  The  court  held  that  she  had  not,  and, 
in  the  discussion,  held,  that  on  the  facts  in  the  case 
the  father  had  the  right  to  direct  as  to  the  study  of 
geography  by  his  son.  We  see  no  occasion  for  differ- 
ing with  the  court  in  that  case.  In  the  course  of  the 
opinion  it  is  said :  '  It  is  not  proposed  to  throw  any  ob- 
stacle in  the  way  of  the  performance  of  their  duties  ' 
by  the  school  board.  Again, '  We  do  not  propose  to 
lay  down  any  rule  which  will  interfere  with  any  rea- 
sonable regulation  adopted  for  the  management  aud 
government  of  the  public  schools,  or  which  will  op- 
erate against  their  efficiency  and  usefulness.  Certain 
studies  are  required  to  be  taught  in  the  public  schools 
by  statute.  The  rights  of  one  pupil  must  be  so  ex- 
ercised, undoubtedly,  as  not  to  prejudice  the  equal 
rights  of  others.     But  the  parent  has  the  right  to 


SCHOOL    OFFICERS    AND    TEACHERS.  59 

make  a  reasonable  selection  from  the  prescribed 
studies  for  his  child  to  pursue,  and  this  cannot  possi- 
bly conflict  with  the  equal  rights  of  other  pupils.  In 
the  present  case  the  parent  did  not  insist  that  his 
child  should  take  any  study  outside  of  the  prescribed 
course.1  'And  how  it  can  result  disastrously  to  the 
proper  discipline,  efficiency,  and  well-being  of  the 
common  schools,  to  concede  the  paramount  right  to 
make  a  reasonable  choice  from  the  studies  in  the  pre- 
scribed course  which  his  child  shall  pursue  is  a  prop- 
osition we  cannot  understand.'  And  this,  as  well  as 
all  that  was  said  by  the  judge,  is  to  be  taken  as  in  a 
case  where  there  was  no  rule  as  to  the  study  of  geog- 
raphy by  the  boy,  except  the  personal  arbitrary  com- 
mand upon  him  of  the  teacher.  How  this  court 
would  decide  in  a  case  involving  the  question  of  su- 
periority between  the  parent  and  the  school  board,  as 
to  the  pursuit  of  a  study  required  by  the  established 
rule  of  that  board,  we  have  now  no  occasion  to  an- 
nounce or  intimate.  Nor  had  that  court  any  such 
question  before  it." 

It  seems  here  assumed  that  had  the  school  board 
made  a  rule  covering  the  point  in  issue,  and  the 
pupil,  under  the  direction  of  his  father,  refused 
to  obey  the  rule,  and  was  punished  by  the  teacher, 
the  court  of  Wisconsin  would  have  decided  other- 
wise. 

Again,  it  is  claimed  that  the  decision  only  deter- 
mines that  the  teacher  had  no  power  to  punish  the 
boy  by  inflicting  bodily  pain  for  refusing  to  obey  her 
command  rather  than  the  command  of  his  father. 
That,  instead  of  whipping,  she  should  have  suspended 


60  POWER    AND    AUTHORITY    OF 

him  from  the  privileges  of  the  school.  This  claim  is 
supported  by  the  reasoning  of  the  court  in  the  case  of 
State  v.  Mizncr,  ante,  p.  50. 

But,  turning  to  the  whole  opinion  of  Judge  Cole  in 
the  Wisconsin  case,  the  decision  is  plainly  based  upon 
a  broader  ground  than  the  making  of  a  rule,  or  the 
method  of  punishment,  namely:  "The  paramount 
right  of  the  parent  to  make  a  reasonable  choice  from 
the  studies  in  the  prescribed  course.''  True,  the  right 
of  the  parent  is  determined  as  against  the  teacher,  but 
the  argument  goes  beyond,  making  no  distinction  be- 
tween the  teacher  and  the  school  authorities.  Sup- 
pose the  school  board  had  made,  recorded,  and  duly 
announced  to  teachers  and  pupils  a  rule  requiring 
the  study  of  geography ;  would  the  parental  right 
to  make  a  choice  of  studies  be  in  any  way  affected  ? 
Would  the  rule  operate  against  the  parent  with  any 
more  force  or  reason  than  the  act  of  the  legislature 
prescribing  certain  studies?  Recurring  to  the  opin- 
ion (ante,  p.  39),  after  the  matter  last  quoted  by  the 
Vermont  court  occurs  this  language  :  "  But,  consider- 
ing that  the  study  of  geography  was  less  necessary  for 
his  boy  at  that  time  than  some  other  branches,  he  de- 
sired him  to  devote  all  his  time  to  orthography,  read- 
ing, writing,  and  arithmetic.  The  father  stated  that 
he  thought  these  studies  were  enough  for  the  child  to 
take ;  and  he  said  he  was  anxious  the  boy  should  ob- 
tain a  good  knowledge  of  arithmetic,  in  order  that  he 
might  assist  in  keeping  accounts.  He  wished  to  ex- 
ercise some  control  over  the  education  of  his  son,  and 
it  is  impossible  to  say  that  the  choice  of  studies  which 
he  made  was  unreasonable  or  inconsistent  with  the 


SCHOOL    OFFICERS    AND    TEACHERS.  61 

welfare  and  best  interest  of  his  offspring.  And  how 
it  will  result  disastrously  to  the  proper  discipline,  ef- 
ficiency, and  well -being  of  the  common  schools  to 
concede  this  paramount  right  to  the  parent  to  make  a 
reasonable  choice  from  the  studies  in  the  prescribed 
course  which  his  child  shall  pursue  is  a  proposition 
we  cannot  understand." 

Here  the  argument  rests  entirely  upon  the  right  of 
the  parent  to  choose,  and  the  reasonableness  of  his 
choice.  And  again,  "  It  is  unreasonable  to  suppose 
any  scholar  who  attends  school  can  or  will  study  all 
the  branches  taught  in  them.  From  the  nature  of  the 
case  some  choice  must  be  made,  and  some  discretion 
be  exercised  as  to  the  studies  which  the  different  pu- 
pils shall  pursue.  The  parent  is  quite  as  likely  to 
make  a  wise  and  judicious  selection  as  the  teacher." 
What  force  has  the  word  "teacher"  here?  Why  is 
not  the  father,  from  his  knowledge  of  "  the  health, 
temperament,  aptitude,  and  deficiencies  of  his  child  " 
(ante,  p.  38)  as  likely  to  make  a  wise  and  judicious 
selection  as  the  school  board  ?  The  words  of  Judge 
Cole  first  quoted  by  the  Vermont  court,  and  the  sen- 
tence next  quoted,  "  It  is  not  proposed  to  throw  any 
obstacle  in  the  way  of  the  performance  of  these  du- 
ties," are  to  be  read  in  connection  with  the  qualifying 
proposition  immediately  following,  commencing  with 
a  very  large  and  expressive  "  But."  "  But  these  powers 
and  duties  can  be  well  fulfilled  without  denying  to 
the  parent  all  right  to  control  the  education  of  his 
children  "  (ante,  p.  41 ).  And  it  must  be  noticed,  further, 
that  in  the  remarks  cited  by  the  Vermont  court  as 
demonstrating  the  wish  of  the  Wisconsin  court  to 


62  POWER    AND    AUTHORITY    OF 

avoid  all  conflict  with  the  rules  of  the  board,  occurs  a 
qualifying  statement  equally  broad  and  distinct  as  the 
above,  and  introduced  with  the  equally  expressive 
"  Bat.'1''  "  But  the  parent  has  the  right  to  make  a 
reasonable  selection  from  the  prescribed  studies  for 
his  child  to  pursue,  and  this  cannot  possibly  conflict 
with  the  rights  of  other  pupils."  And  in  this  connec- 
tion it  must  be  observed  that  it  is  only  the  "  reason- 
able "  regulation  of  the  board  with  which  the  court 
will  not  interfere;  and  this  expression,  coupled  with 
the  assertion  of  the  parent's  right,  is  a  broad  intima- 
tion that  any  regulation  affecting  that  right  would 
not  be  "  reasonable." 

True,  again,  the  case  decides  that  the  teacher  had 
no  right  to  whip  the  boy ;  but  if  the  act  was  in  con- 
travention of  a  parental  right,  which  right  the  de- 
cision aims  to  establish,  what  matters  it  whether  the 
parental  right  is  trespassed  iq)on  with  a  rattan  or  a 
note  of  suspension. 

That  the  Wisconsin  court  has  made  a  decision 
which  announces  the  right  of  a  parent  to  select  the 
studies  the  child  shall  pursue  is  fully  recognized  and 
approved  by  the  Supreme  Court  of  Illinois  in  the  case 
of  Trustees  v.  The  People,  ante,  p.  46.  There  the  reg- 
ulation was  made  by  the  school  officers,  and  they 
were  the  defendants  in  the  suit;  furthermore,  the 
method  adopted  with  the  pupil  was  not  castigation, 
but  exclusion  from  school.  The  school  officers  were 
authorized  by  law,  "to  adopt  and  enforce  all  neces- 
sary rules  and  regulations  for  the  management  and 
government  of  the  schools ;  to  direct  what  branches 
of  study  shall  be  taught."     The  court  declares,  with- 


SCHOOL    OFFICERS    AND    TEACHERS.  C3 

out  any  equivocation,  that  the  school  board  has  no 
power  "to  decide  what  particular  branches  of  study, 
of  those  decided  to  be  taught,  shall  be  pursued  by 
each  pupil,"  that  "no  particular  branch  of  study  is 
compulsory  upon  those  who  attend  school,  but  schools 
are  simply  provided  by  the  public  in  which  prescribed 
branches  are  taught,  which  are  free  to  all  within  the 
district  between  certain  ages,"  and  "  it  is  for  the 
parent,  not  the  trustees,  to  direct  the  branches  of  edu- 
cation" the  child  shall  pursue.  This  seems  to  be 
just  the  case  supposed  by  the  Vermont  court,  involv- 
ing the  questions  which  it  said  were  not  raised  in  the 
Wisconsin  case.  It  was  decided  three  years  after  the 
review  of  the  subject  by  the  Vermont  justices,  though 
a  year  before  the  case  of  State  v.  Mizner. 

It  remains  to  take  ground  in  support  of,  or  against, 
the  decisions  of  Wisconsin  and  Illinois  which  an- 
nounce the  right  of  the  parent  to  make  a  selection 
from  the  list  of  studies  prescribed  by  law,  as  against 
school  officers  and  teachers.  The  language  of  the 
statutes  of  the  above  states  is  no  more  plain  and 
direct,  and  the  powers  and  rights  granted  the  school 
officers  any  less  than  in  most  of  the  states.  The  argu- 
ment against  the  assertion  of  the  parental  right,  as 
made  by  the  courts  above  named,  rests  upon  the  cen- 
tral, pivotal  idea  of  public  education  —  a  system  of 
common  instruction,  announced  and  cared  for  by  the 
state,  for  the  benefit  of  all  the  people,  and  therefore 
the  state.  The  state  recognizes  the  fact  that  its  sta- 
bility and  perpetuity  are  dependent  upon  the  virtue 
and  intelligence  of  its  citizens;  that  individual,  and 
hence  general,  virtue  is  increased  by  the  increase  of 


64  POWER    AND    AUTHORITY    OF 

individual  and  general  intelligence.  To  this  end  the 
state  desires  to  secure  for  each  child  the  rudiments 
of  education.  It  does  not  take  from  the  parent  the 
right,  or  release  him  from  the  duty,  to  educate  his 
child;  but  it  warrants  a  measure  of  education  to  the 
child  as  against  the  neglect  or  inability  of  the  parent, 
and  defines  the  duty  of  the  parent.  The  state,  jealous 
of  its  own  interests,  will  not  allow  parents  to  permit 
their  children  to  grow  up  in  ignorance.  Hence,  by 
public  statute,  a  course  of  public  education  is  pre- 
scribed supported  by  public  taxation.  It  is  to  be 
presumed  that  the  course  of  education  defined,  when 
one  is  defined,  by  the  organic  law  or  the  legislature, 
is  the  best  result  of  the  wise  deliberation  of  the  rep- 
resentatives of  the  public  having  in  view  the  best  in- 
terests of  the  state  and  its  citizens;  and  when  a 
course  is  not  defined,  as  is  the  case  in  a  number  of  the 
states,  but  the  choice  is  confided  to  certain  officers  or 
boards  created  by  the  law,  the  presumption  is  equally 
strong  that  the  legislature  has  given  to  them  its  own 
powers  of  prescription,  and  that  the  interests  of  citi- 
zens and  the  welfare  of  the  state  will  be  best  sub- 
served by  such  exercise  of  the  powers  as  they  deem 
best.  Now  if  a  father  who,  by  force  of  circumstances 
or  simple  choice,  has  intrusted  the  education  of  his 
child  to  the  state  or  its  lawfully  appointed  agents, 
can  dictate  to  the  state  or  its  agents  what  amount, 
how  little  and  how  much,  of  the  course  of  public  in- 
struction is  necessary  for  the  welfare  of  the  child,  and 
can  refuse  to  have  him  take  more  than  he  desires  and 
commands,  and  the  school  authorities  are  powerless, 
then  the  object  of  the  law  is  frustrated;  the  expressed 


SCHOOL    OFFICERS    AND    TEACHERS.  G5 

voice  of  the  majority  is  without  effect  against  the  will 
of  one  man. 

It  is  urged,  it  is  not  intended  to  subvert  the  law 
or  intent  of  the  law  providing  for  general  education, 
but  simply  to  allow  the  parent  a  reasonable  choice  of 
studies  for  his  child.  The  word  "reasonableness," 
then,  is  the  bound ;  the  reasonableness  of  the  demand 
of  the  parent,  the  limit.  If  there  is  reason  in  the 
claim  of  the  parent,  the  lines  laid  by  the  law  must  be 
swerved  more  or  less  according  to  the  amount  of  rea- 
son. Then  there  is  no  certainty ;  the  course  of  in- 
struction in  school  may  be  dependent  upon  such  plans 
as  respective  parents  may  have.  The  discretionary 
power  of  school  officers  given  by  law  exists  only  in 
name,  and  the  simple  duty  remaining  is  to  make  such 
course  of  instruction  as  is  best-  and  possible  of  the 
studies  chosen  by  parents  in  the  exercise  of  parental 
prerogative. 

For  where  is  the  line  of  "  reasonableness  "  to  be 
drawn  ?  What  is  a  reasonable  choice  to-day  is  not 
to-morrow ;  and  the  choice  of  one  man,  reasonable  in 
his  case,  may  be  unreasonable  when  presented  by  an- 
other. There  was  a  measure  of  reason  in  the  demand 
of  the  Wisconsin  parent  that  his  boy  should  devote 
extra  time  to  arithmetic,  that  he  might  be  more  valu- 
able to  him,  and  the  school  boards  are  few  that  would 
not  accede  to  the  father's  wish ;  and  yet  it  seems  the 
board,  having  in  view  the  value  of  education  to  the 
child,  might  demand  that  he  receive  some  knowledge 
of  the  world  and  its  peoples  through  the  study  of 
geography,  as  well  as  to  keep  in  view  the  assistance 
he  was  to  render  his  parent.  Suppose  the  father 
5 


66  POWER    AND    AUTHORITY    OF 

believed  his  own  knowledge  of  arithmetic  was  suffi- 
cient for  his  whole  family,  and  desired  his  boy  to 
devote  his  whole  time  to  the  study  and  practice  of 
penmanship ;  or,  thinking  his  son's  head  not  strong 
enough  to  wrestle  with  common  fractions,  should  de- 
sire him  to  confine  his  attention  to  grammar  and 
spelling,  which  would  enable  him  to  speak  and  wTrite 
correctly  and  appear  wTell  among  his  fellows.  A  man 
who  never  went  to  school  and  runs  the  same  sawmill 
that  his  father  before  him  did,  who  keeps  his  ac- 
counts with  a  piece  of  chalk  on  a  slab,  and  cannot 
see  the  necessity  or  gain  of  his  children  knowing 
more  than  he  does,  may  make  a  choice  of  studies  for 
them  based  upon  his  own  ignorance;  a  choice  with 
some  sprinkle  of  reasonableness  perhaps,  and  yet  a 
choice  which  -will  not  enable  them  to  take  a  level 
much  above  his,  or  that  will  contribute  greatly  to 
their  improvement  or  pleasure.  And  the  cases  might 
be  multiplied  in  which  a  father,  having  in  mind  his 
own  interest,  the  health  of  his  child,  and  his  future 
work  in  life,  would  make  a  choice  of  study  which 
would  appear  reasonable,  and  yet,  in  the  judgment  of 
men  appointed  to  secure  the  best  results  of  education 
for  one  and  all,  would  not  be  best  either  for  the  child, 
the  parent,  or  the  state.  To  allow  the  wish  of  one 
man  might  not  interfere  with  the  welfare  of  the 
school  or  the  course  of  instruction  therein,  but  if  sev- 
eral or  all  the  parents  should  make  the  same  demand, 
and  they  might  with  equal  reason,  and  of  course  with 
equal  right,  it  might  be  impossible  to  do  any  effectual 
or  valuable  work  in  the  school. 

The  advocate  of  the  father's  right  may  say  such 


SCHOOL    OFFICERS    AND    TEACHERS.  67 

cases  are  not  likely  to  arise.  Why  not  as  likely  to 
arise  as  that  a  fair  and  prudent  school  board  will  re- 
fuse to  listen  to  the  reasonable  wish  of  parents  ?  The 
demand  in  each  case  is  reasonable,  and  the  parent 
makes  it  as  of  right.  It  is  as  fair  to  argue  that  sev- 
eral instances  of  reasonableness  become  an  aggregate 
of  unreasonableness,  as  to  argue  that  a  school  board, 
chosen  for  their  good  judgment  in  the  matter,  in  the 
exercise  of  lawful  powers  will  refuse  to  grant  the  rea- 
sonable request  of  a  father,  and  thereby  make  a  woe- 
fid  mistake  and  do  a  woeful  wrong. 

The  claim  of  parental  right,  as  against  a  right  as- 
sumed by  government  or  unfairly  exercised,  is  one 
that  the  citizens  of  this  country  would  not  be  slow  to 
assert.  The  fact  that  among  the  great  population  of 
the  states,  in  all  the  years  the  systems  of  public  in- 
struction have  been  in  operation,  but  a  very  few  cases 
of  this  character  have  arisen,  goes  to  show  that  there 
has  not  been  any  serious  conflict  between  the  school 
officers  and  parents;  and  that  such  officers  and  their 
teachers  have  heeded  the  reasonable  requests  of  par- 
ents and  pupils.  Is  it  not  safer  to  let  the  matter  of 
defining  a  course  of  study  rest  in  the  judgment  and 
discretion  of  the  school  authorities  than  to  submit 
it  to  the  individual  whims  and  opinions  of  parents, 
trusting  rather  to  the  good  sense  of  the  authorities  to 
make  a  wise  disposal  of  individual  cases,  than  to 
announce  the  right  of  every  man  to  set  up  his  own 
wish  and  desire  ?  Is  it  not  more  in  accord  with  rea- 
son, and  in  support  of  the  end  and  aim  of  public  in- 
struction ?  The  reasoning  of  the  court  in  the  Maine 
case  of  DonaJioe  v.  Richards,  ante,  p.  24,  seems  to  meet 


68  POWER    AND    AUTHORITY    OF 

and  overturn  that  of  the  court  in  the  "Wisconsin  case 
as  to  the  principles  governing  the  power  and  author- 
ity given  by  statute  to  school  boards  and  teachers  as 
against  the  right  of  parents.  Certainly  no  larger  or 
more  explicit  grant  of  power  was  given  by  the  Maine 
statute  than  by  the  Wisconsin. 

The  Supreme  Court  of  New  Hampshire,  in  the  case 
of  Kidder  v.  Chellis,  ante,  p.  52,  directly  denies  the 
rule  of  law  as  laid  down  in  Morrow  v.  Wood,  and  evi- 
dently deems  it  unnecessary  to  argue  for  the  power 
of  public  -  school  officers  and  teachers  to  regulate 
studies  as  against  the  parental  right.  And  that  court 
further  decides  that  the  exercise  of  the  authority  to 
prescribe  and  enforce  studies  is  not  dependent  upon 
the  technical  observance  of  the  law  in  regard  to  the 
appointment  of  teachers  and  the  publication  of  rules 
and  regulations  by  the  school  board. 

RULES    IN    OTHER    CASES. 
Massachusetts,  1866.— SpUler  v.  Woburn,  12  All.  127. 

The  school  committee  of  Woburn,  Mass.,  ordered 
that  the  schools  should  be  opened  in  the  morning 
with  reading  from  the  Bible  and  prayer,  and  that 
the  scholars  should  bow  their  heads  during  the 
prayer.  Because  of  some  objection  made  to  the 
latter  portion  of  the  order,  the  committee  modified 
it,  and  directed  that  any  scholar,  whose  parent  re- 
quested it,  should  be  excused  from  bowing  the  head. 
The  father  of  a  girl  named  Ella  R.  Spiller  refused  to 
request  that  she  be  excused,  and  ordered  her  not  to 
obey  that  part  of  the  order.     She  refused  to  bow 


SCHOOL    OFFICERS    AND    TEACHERS.  69 

her  head  during  prayer,  and  was  excluded  from  the 
school  until  she  should  comply  with  the  rule,  or  her 
parent  should  request  her  exemption.  She  then  in- 
stituted a  suit  against  the  town.  The  Supreme  Court 
decided  that  the  rule  was  reasonable  and  proper. 

Opinion :  "  The  power  of  the  school  committee  of 
a  town  to  pass  all  reasonable  rules  and  regulations 
for  the  government,  discipline,  and  management  of 
the  public  schools  under  their  general  charge  and 
superintendence  is  clear  and  unquestionable.  (Gen. 
Sts.  c.  38,  §  16;*  Roberts  v.  Boston,  5  Cush.  198; 
Sherman  v.  Charlestoivn,  8  Cush.  160.)  Equally 
clear  is  it  that  the  committee  of  the  town  of  Wo- 
burn  did  not  exceed  their  authority  in  passing  an 
order  that  the  Bible  should  be  read  and  prayer 
offered  at  the  opening  of  the  schools  on  the  morn- 
ing of  each  day.  No  more  appropriate  method 
could  be  adopted  of  keeping  in  the  minds  of  both 
teachers  and  scholars  that  one  of  the  chief  objects 
of  education,  as  declared  by  the  statutes  of  this  com- 
monwealth, and  which  teachers  are  especially  en- 
joined to  carry  into  effect,  is  '  to  impress  on  the 
minds  of  children  and  youth  committed  to  their 
care  and  instruction  the  principles  of  piety  and  jus- 
tice, and  a  sacred  regard  for  truth.'    (Gen.  Sts.  c.  38, 

*  "  Every  town  shall,  at  the  annual  meeting,  choose,  by 
written  ballots,  a  board  of  school  committee,  which  shall 
have  the  general  charge  and  superintendence  of  all  the  pub- 
lic schools  in  town."    (Same  in  Public  Sts.,  c.  44,  §  21.) 


70  POWER    AND    AUTHORITY    OF 

§  10;  St.  1862,  c.  57.)  We  do  not  mean  to  say 
that  it  would  be  competent  for  a  school  committee 
to  pass  an  order  or  regulation  requiring  pupils  to 
conform  to  any  religious  rite  or  observance,  or  to 
go  through  with  any  religious  forms  or  ceremonies, 
which  were  inconsistent  with  or  contrary  to  their 
religious  convictions  or  conscientious  scruples.  Such 
a  requisition  would  be  a  violation  of  the  spirit  of 
the  clause  in  the  Constitution,  Pt.  1,  Art.  II.,  which 
provides  that  no  one  shall  be  hurt  or  molested  in  his 
person,  liberty,  or  estate,  for  worshipping  God  in  the 
manner  and  season  most  agreeable  to  the  dictates  of 
his  own  conscience ;  and  it  would  also  be  inconsist- 
ent with  the  plain  intention  of  the  legislature,  in  pro- 
viding that  no  one  shall  be  excluded  from  a  public 
school  on  account  of  religious  opinions  (Gen.  Sts., 
c.  41,  §  9),  and  in  requiring  that  the  daily  reading 
of  the  Bible  in  public  schools  shall  be  without  writ- 
ten note  or  oral  comment,  and  in  providing  that  no 
pupil  shall  be  called  on  to  read  any  particular  version, 
whose  parent  or  guardian  shall  declare  that  he  has 
conscientious  scruples  against  allowing  him  to  read 
therefrom.  (St.  1862,  c.  57.)  Having  in  view  the 
manifest  spirit  and  intention  of  these  provisions,  an 
order  or  regulation,  by  a  school  committee,  which 
would  require  a  pupil  to  join  in  a  religious  rite  or 
ceremony  contrary  to  his  or  her  religious  opinions, 
or  those  of  a  parent  or  guardian,  would  be  clearly 
unreasonable  and  invalid- 


SCHOOL    OFFICERS    AND    TEACHERS.  <  1 

"  Bat  we  arc  unable  to  see  that  the  regulation  with 
which  the  plaintiff  was  required  to  comply  can  be 
justly  said  to  fall  within  this  category.  In  the  first 
place,  it  did  not  prescribe  an  act  which  was  neces- 
sarily one  of  devotion  or  religious  ceremony.  It 
went  no  further  than  to  require  the  observance  of 
quiet  and  decorum  during  the  religious  service  with 
which  the  school  was  opened.  It  did  not  compel  a 
pupil  to  join  in  the  prayer,  but  only  to  assume  an 
attitude  which  was  calculated  to  prevent  interrup- 
tions, by  avoiding  all  communication  with  others 
during  the  service.  In  the  next  place,  the  regulation 
did  not  require  a  pupil  to  comply  with  that  part  of 
it  prescribing  the  position  of  the  head  during  prayer, 
if  the  parent  requested  a  child  to  be  excused  from 
it.  This  was  in  analogy  to  the  provision  already 
cited  in  relation  to  the  reading  of  a  particular  ver- 
sion of  the  Bible  contained  in  St.  1862,  c.  57,  and 
talccs  away  all  ground  of  objection  to  the  reason- 
ableness and  validity  of  the  order. 

"Under  these  circumstances,  it  not  appearing  that 
the  plaintiff  made  any  objection  to  a  compliance  with 
the  regulation,  except  in  obedience  to  the  will  of  her 
father,  we  are  of  opinion  that  her  exclusion  from 
the  school  was  justifiable,  and  furnishes  no  ground 
of  action." 


72  POWER    AND    AUTHORITY    OF 

Iowa,  1881. — Perkins  v.  Directors,  56  Iowa,  479. 

The  board  of  directors  in  an  Iowa  district  made  a 
rule  as  follows :  "  Scholars  who  shall  be  guilty  of 
defacing  or  injuring  any  school  property  shall  be  re- 
quired to  pay  all  damage.  Notice  of  such  damage 
shall  be  sent  to  the  parents  or  guardians  of  the  pupil, 
and  in  default  of  payment  the  case  shall  be  reported 
to  the  president  of  the  board,  who  may  proceed  with 
it  according  to  law.  Scholars  thus  reported  to  the 
president  shall  not  afterward  be  allowed  to  attend 
until  payment  of  damages  shall  be  made,  or  the  case 
otherwise  adjusted."  "While  engaged  in  a  game  of 
ball,  at  a  proper  time,  near  the  school-house,  one  of 
the  boys  unintentionally,  and  by  accident,  batted  a 
ball  through  one  of  the  windows  of  the  school-house, 
breaking  a  glass  of  about  the  value  of  three  dollars. 
His  parents  refused  to  pay  for  it.  The  superintend- 
ent of  the  school  would  not  allow  the  pupil  to  at- 
tend, which  action  was  ratified  by  the  directors,  and 
suit  was  brought  against  them.  The  Supreme  Court 
gave  a  decision  against  the  directors. 

From  opinion  :  "  We  are  next  to  inquire  whether 
defendants,  as  school  directors,  had  authority  to  pro- 
mulgate and  enforce  the  rule  under  which  the  plain- 
tiff was  excluded  from  the  school. 

"It  will  be  observed  that  plaintiff  was  guilty  of  no 
breach  of  discipline  or  of  any  offence  against  good 
order. 


SCHOOL    OFFICERS    AND    TEACHERS.  73 

"  By  an  accident,  and  without  any  evil  purpose,  he 
broke  a  window  glass.  The  rule  requires  him  to  pay 
the  damage  done,  and  in  default  thereof  authorizes 
the  directors  to  exclude  him  from  the  school.  We 
may  admit  that  he  ought  to  pay  the  damages  and  is 
liable  therefor.  But  we  think  his  omission  to  per- 
form this  duty  cannot  be  punished  by  his  expulsion 
from  the  school.  The  state  does  not  deprive  its  citi- 
zens of  their  property,  or  their  liberty,  or  of  any 
rights,  except  as  a  punishment  for  a  crime.  It  would 
be  very  harsh  and  obviously  unjust  to  deprive  a 
child  of  education  for  the  reason  that  through 
accident  and  without  intention  of  wrong  he  de- 
stroyed property  of  the  school  district.  Doubtless 
a  child  may  be  expelled  from  school  as  a  punish- 
ment for  breach  of  discipline  or  for  offences  against 
good  morals,  but  not  for  innocent  acts. 

"  In  this  case  the  plaintiff  was  expelled,  not  because 
he  broke  the  glass,  but  because  he  did  not  pay  the 
damage  sustained  by  the  breaking.  Ilis  default  in 
this  respect  was  no  breach  of  good  order  or  good 
morals.  The  rule  requiring  him  to  make  payment 
is  not  intended  to  secure  good  order,  but  to  enforce 
an  obligation  to  pay  a  sum  of  money. 

"  We  arc  clearly  of  opinion  that  the  directors  have 
no  authority  to  promulgate  or  enforce  such  a  rule." 

Note. — The  law  of  New  Jersey  provides  for  suspen- 
sion as  penalty  for  damage  to  school  property :  "  Any 
pupil  who  shall  in  any  way  cut,  deface,  or  otherwise 


74  POWER    AND    AUTHORITY    OF 

injure  any  school-house,  fences  or  outbuildings  thereof, 
shall  be  liable  to  suspension  and  punishment,  and  the 
parents  of  sucli  pupil  shall  be  liable  in  damages." 

SUSPENSION    AND    EXPULSION. 

For  case  of  expulsion  for  immoral  practices  out 
of  school,  see  page  91.     (8  Cash.  160.) 

For  case  of  expulsion  for  refusing  to  bow  the  head 
during  prayer,  see  page  68.     (12  All.  127.) 

For  cases  of  expulsion  and  suspension  for  tardi- 
ness and  absence,  sec  page  9  (116  Mass.  366),  and 
page  20  (71  Mo.  628). 

For  cases  of  expulsion  for  refusal  to  study  certain 
branches,  see  page  41  (79  111.  567),  and  page  33 
(32  Vt,  226). 

For  case  of  expulsion  for  not  paying  for  glass 
broken  in  school-house,  see  page  72.  (56  Iowa, 
479.) 

For  case  of  refusal  to  admit  scholar  because  of 
deficiency  in  one  study,  see  page  46.     (87  111.  303.) 

For  case  of  expulsion  for  publishing  article  reflect- 
ing upon  school  board,  see  page  99.  (30  Iowa, 
429.) 

For  case  where  pupil  was  expelled  for  attending 


SCHOOL    OFFICERS    AND    TEACHERS.  75 

social  parties,  contrary  to  rule  of  the  school  board, 
see  page  102.     (66  Mo.  286.) 

For  case  where  court  intimated  that  suspension 
was  the  proper  course  to  pursue,  instead  of  whip- 
ping, where  child,  in  obedience  to  parent,  refuses  to 
study  certain  branches,  see  pages  50,  122.  (50  Iowa, 
152.) 

For  case  of  expulsion  where  scholars  were  absent 
from  school  to  attend  religious  services  by  command 
of  parents  and  priest,  but  without  consent  of  school 
committee,  see  page  10.     (48  Vt.  444.) 

For  case  of  expulsion  of  Catholic  child  for  refusal 
to  comply  with  a  rule  requiring  pupils  to  read  in  the 
Protestant  version  of  the  Bible,  see  page  24  (38 
Me.  379) ;  and  for  case  of  suspension  of  Catholic 
boy  for  refusing  to  lay  aside  his  books  during  the 
reading  from  the  Bible,  see  page  134.    (95  111.  263.) 

For  case  where  pupil,  after  being  expelled  from 
school,  was  ejected  from  school  building  while  at- 
tending a  public  entertainment  therein,  see  page  86. 
(3  Pitts.  R.  264.) 

For  case  where  boy  was  ejected  from  the  school- 
house  for  using  saucy  and  profane  language  to  the 
school  committee,  see  page  88.     (41  Conn.  442.) 

For  case  of  suspension  for  not  declaiming,  see 
page  52.     (Kidder  v.  Chellis,  59  N.  H.  473.) 


76  POWER    AND    AUTHORITY    OF 

Massachusetts,  1870. — Hodgkina  v.  Eockport,  105  Mass.  475. 

Henry  Hodgkins  was  expelled  from  school  by  the 
committee  of  Rockport,  Mass.,  for  acts  of  misconduct 
which  consisted  of  "  whispering,  laughing,  acts  of 
playfulness  and  rudeness  to  other  pupils,  inattention 
to  study,  and  conduct  tending  to  cause  confusion 
and  distract  the  attention  of  other  scholars  from 
their  studies  and  recitations."  Before  expulsion  the 
pupil  was  remonstrated  with,  and  admonished  by 
the  teacher  and  members  of  the  committee.  The 
boy  instituted  a  suit  against  the  town  for  this  exclu- 
sion from  school.  The  Supreme  Court  decided  that 
the  exclusion  was  lawful. 

From  the  opinion :  "  The  sixteenth  section  of 
chapter  thirty-eight  of  the  General  Statutes  provides 
that  the  school  committee  '  shall  have  the  general 
charge  and  superintendence  of  all  the  public  schools 
in  town.'  This  general  power,  by  necessary  impli- 
cation, includes  the  power  to  make  all  reasonable 
rules  and  regulations  for  the  discipline,  government, 
and  management  of  the  schools,  and  also  the  power 
to  exclude  children  from  school  for  sufficient  cause. 
{Roberts  v.  Boston,  5  Cnsh.  198 ;  Sherman  v.  Charles- 
town,  8  Cush.  160  ;  Spiller  v.  Woburn,  12  All.  127.) 
And  when  a  scholar  is  guilty  of  misconduct  which 
injuriously  affects  the  discipline  and  management 
of  the  school,  we  think  the  law  vests  in  the  school 
committee  the  power  of  determining  whether  the 
welfare  of  the  school  requires  his  exclusion. 


SCHOOL    OFFICERS    AND    TEACHERS.  77 

"  They  are  required  by  law  to  visit  the  schools  fre- 
quently, for  the  purpose  of  inquiring  '  into  the  regu- 
lation and  discipline  of  the  schools,  and  the  habits 
and  proficiency  of  the  scholars  therein'  (Gen.  Sts. 
c.  38,  §  2G) ;  and  they  are  thus  in  a  situation  to  judge, 
better  than  any  other  tribunal,  what  effect  such  mis- 
conduct has  upon  the  usefulness  of  the  school  and 
the  welfare  of  the  other  scholars ;  and  if  they  exer- 
cise this  power  in  good  faith,  their  decision  is  not 
subject  to  revision  by  the  court. 

"In  the  case  at  bar,  the  committee,  acting  in  good 
faith,  excluded  the  plaintiff  from  school  on  account 
of  his  general  persistence  in  disobeying  the  rules  of 
the  school,  to  the  injury  of  the  school.  He  was  guilty 
of  acts  of  misconduct  which,  if  persisted  in,  it  is 
clear,  might  seriously  interfere  with  the  discipline 
and  impair  the  usefulness  of  the  school.  Whether 
they  had  such  an  effect  upon  the  welfare  of  the 
school  as  to  require  his  expulsion  was  a  question 
within  the  discretion  of  the  committee,  and  upon 
which  their  action  is  conclusive." 

Vermont,  1874.— Scott  v.  School  District,  46  Vt.  452. 

A  teacher  in  Vermont  expelled  from  her  school 
the  son  of  the  prudential  committee,  for  disobedience 
of  the  rules  of  the  school.  The  father,  as  such  com- 
mittee, insisted  upon  her  taking  the  boy  back.  The 
teacher  refused,  quit  the  school,  and  at  the  close  of 
the  term  sued  to  recover  her  salary.     In  this  suit, 


78  POWER    AND    AUTHORITY    OF 

which  resulted  in  the  teacher's  favor,  the  following 
principles  were  laid  down  by  the  Supreme  Court : 

"  The  teacher  could  not  perform  the  duties  of  her 
employment  without  maintaining  proper  and  neces- 
sary discipline  in  the  school,  and  when  all  her  other 
means  for  doing  so  failed  in  respect  to  the  boy,  it 
was  her  right,  and  might  be  her  duty,  to  expel  him, 
to  save  the  rest  of  the  school  from  being  injured  by 
his  presence.  It  was  not  the  duty  of  the  teacher, 
under  the  contract,  to  teach  the  school  without 
maintaining  proper  and  necessary  discipline  in  it; 
and  if  the  committee  insisted  that  she  should  have 
the  boy  there,  when  she  could  not  have  him  there 
and  the  discipline  too,  it  was  equivalent  to  insisting 
that  she  should  teach  the  school  without  the  dis- 
cipline, which  she  was  not  bound  to  do."  * 

Wisconsin,  1878.— State  v.  Burton,  i§  Wis.  150. 

A  teacher  in  Wisconsin  suspended  a  boy  for 
"  continued  misconduct,"  or  "  general  bad  conduct," 
and  the  suspension  was  subsequently  approved  by 
the  school  board.  In  a  suit  brought  to  compel  his 
reinstatement,  the  Supreme  Court  considered  the 
rights  and  powers  of  teachers  in  matters  of  suspen- 
sion and  expulsion. 

Extract  from  opinion:  "The  teacher  is  responsi- 
ble for  the  discipline  of  his  school,  and  for  the  prog- 

*  See  Tennessee  case,  p.  80,  and  note,  p.  82. 


SCHOOL    OFFICERS    AND    TEACHERS.  79 

rcss,  conduct,  and  deportment  of  his  pupils.  It  is 
his  imperative  duty  to  maintain  good  order,  and  to 
require  of  his  pupils  a  faithful  performance  of  their 
duties.  If  he  fails  to  do  so  he  is  unfit  for  his  posi- 
tion. To  enable  him  to  discharge  these  duties  ef- 
fectually he  must  necessarily  have  the  power  to  en- 
force prompt  obedience  to  his  lawful  commands. 
For  this  reason  the  law  gives  him  the  power,  in 
proper  cases,  to  inflict  corporal  punishment  upon  re- 
fractory pupils.  But  there  are  cases  of  misconduct 
for  which  such  punishment  is  an  inadequate  remedy. 
Tf  the  offender  is  incorrigible,  suspension  or  expul- 
sion is  the  only  adequate  remedy.  In  general,  no 
doubt,  the  teacher  should  report  a  case  of  that  kind 
to  the  proper  board  for  its  action  in  the  first  in- 
stance, if  no  delay  will  necessarily  result  from  that 
course  prejudicial  to  the  best  interests  of  the  school. 
But  the  conduct  of  the  recusant  pupil  may  be  such 
that  his  presence  in  the  school  for  a  day  or  an  hour 
may  be  disastrous  to  the  discipline  of  the  school, 
and  even  to  the  morals  of  the  other  pupils.  In  such 
a  case  it  seems  absolutely  essential  to  the  welfare  of 
the  school  that  the  teacher  should  have  the  power  to 
suspend  the  offender  at  once  from  the  privileges  of 
the  school ;  and  he  must  necessarily  decide  for  him- 
self whether  the  case  requires  that  remedy.  If  he 
suspends  the  pupil,  he  should  promptly  report  his 
action  and  his  reasons  therefor  to  the  proper  board. 
It  will  seldom  be  necessary  for  the  teacher  in  charge 


80  POWER    AND    AUTHORITY    OF 

of  a  district  school  to  exercise  this  power,  because 
usually  lie  can  communicate  readily  with  the  dis- 
trict board,  and  obtain  the  direction  and  order  of 
the  board  in  the  matter.  But  where  the  govern- 
ment of  a  public  school  is  vested  in  a  board  of  edu- 
cation (as  in  the  present  case)  with  a  more  numerous 
membership  than  district  boards,  and  which  holds 
stated  meetings  for  the  transaction  of  business,  the 
facilities  for  speedy  communication  with  the  board 
may  be  greatly  decreased,  and  more  time  must  usu- 
ally elapse  before  the  board  can  act  upon  a  com- 
plaint of  the  teacher.  In  those  schools  the  occa- 
sions which  require  the  action  of  the  teacher  in  the 
first  instance  will  occur  more  frequently  than  in  the 
district  schools.  "We  conclude,  therefore,  that  the 
teacher  has,  in  a  proper  case,  the  inherent  power  to 
suspend  a  pupil  from  the  privileges  of  his  school, 
unless  he  has  been  deprived  of  the  power  by  the  af- 
firmative action  of  the  proper  board." 

Tennessee,  1880. — Parker  v.  School  District,  5  Lea,  525. 

A  teacher  in  Tennessee  published  certain  rules  for 
his  school,  one  of  which  was  as  follows:  "Pupils 
must  abstain  from  the  common  use  of  tobacco  and 
ardent  spirits."  The  school  directors  objected  to 
that  part  in  relation  to  tobacco,  and  he  was  em- 
ployed upon  the  understanding  and  condition  that 
the  rule  in  relation  to  the  use  of  tobacco  should  not 
be  enforced  on  the  school  grounds  outside  of  the 


SCHOOL    OFFICERS    AND    TEACHEHS.  81 

school-house.  After  some  days  he  suspended  two 
of  the  pupils  for  using  tobacco  on  the  school  grounds 
outside  the  school -house.  The  directors  insisted 
that  the  pupils  should  be  restored.  The  teacher  re- 
fused to  abrogate  or  modify  his  rule  in  regard  to 
tobacco  and  to  allow  the  pupils  to  continue  in 
school  with  the  privilege  of  using  tobacco  on  the 
school  grounds;  and  the  directors  thereupon  dis- 
charged him. 

In  a  suit  concerning  the  salary  of  the  teacher  it 
was  decided  by  the  Supreme  Court  that,  under  the 
provisions  of  the  state  law,  the  teacher  could  suspend 
but  not  expel,  and  his  decision  was  subject  to  the 
action  of  the  directors. 

The  following  sections  of  the  law  were  cited  by 
the  court.  School  directors  "  to  suspend  or  dismiss 
pupils  when  the  prosperity  or  efficiency  of  the  school 
requires  it."  "  Any  teacher  of  a  public  school  may, 
for  sufficient  cause,  suspend  pupils  from  attendance 
on  the  schools  until  the  case  is  decided  by  the  board 
of  school  directors,  which  shall  be  with  as  little  de- 
lay as  possible." 

Extract  from  opinion  :  "  From  these  provisions 
[recited  above]  it  is  apparent  that  a  teacher  of  a 
public  school,  while  he  has  the  right  to  suspend  a 
pupil  until  the  case  is  decided  by  the  directors,  can- 
not, without  the  concurrence  of  the  directors,  per- 
manently deprive  a  pupil,  within  the  ages,  and  resid- 
ing within  the  district,  of  the  privileges  of  the  school. 
G 


82  POWER    AND    AUTHORITY    OF 

The  power  to  dismiss  a  pupil  is  alone  given  to  the 
directors,  and  their  decision  must  control. 

"  The  refusal  of  a  teacher  to  receive  and  admit  to 
the  privileges  of  the  school  a  pupil  whom  the  di- 
rectors decide  shall  be  received,  or  an  attempt  upon 
the  part  of  the  teacher  to  dismiss  a  pupil  whom  the 
directors  decide  shall  not  be  dismissed,  is,  we  think, 
such  '  improper  conduct'  as  would  authorize  the  di- 
rectors to  dismiss  the  teacher,  for  this  would  be  to 
deny  to  the  pupils  the  privileges  of  the  public  school 
secured  to  them  by  the  law.* 

"  It  is  unnecessary  for  us  to  express  any  opinion 
as  to  the  wisdom  or  propriety  of  the  rule  in  regard 
to  the  use  of  tobacco,  about  which  the  controversy 
arose.  It  is  enough  to  say  that  this  and  all  ques- 
tions of  a  similar  character  are  by  the  law  intrusted 
to  the  wisdom  and  discretion  of  the  school  directors, 
and  their  decision  must  in  general  be  conclusive.  If 
we  could  in  any  case  control  their  discretion,  the 
present  is  not  a  case  for  the  exercise  of  such  power." 

*  The  rule  as  thus  broadly  asserted  apparently  conflicts 
with  that  expressed  in  the  Vermont  case  (p.  77),  but  it  is  to 
be  noted  that  the  Tennessee  case  turned  upon  the  provision 
of  the  statute  cited  in  the  opinion ;  and  the  real  issue  between 
the  teacher  and  school  board  was  concerning  the  adoption  of 
a  by-law,  and  the  teacher  violated  a  condition  of  his  employ- 
ment in  enforcing  a  rule  annulled  by  them. 


SCHOOL    OFFICERS   AND    TEACHERS.  83 

Massachusetts,  1882. — Davis  v.  Boston,  133  Mass.  103. 

Joseph  F.  Davis  was  a  pupil  in  a  grammar  school 
in  the  city  of  Boston.  He  refused  to  submit  to  cor- 
poral punishment  for  disobedience  and  impertinence 
in  school,  and  was  ordered  by  his  teacher  to  go  to 
the  principal  of  the  school ;  he  went  home  instead, 
but  returned  after  several  days  and  offered  to  sub- 
mit to  punishment;  after  the  teacher  commenced 
to  punish,  the  boy  refused  to  submit  to  further  pun- 
ishment, and,  as  before,  was  ordered  to  report  to  the 
principal,  and,  as  before,  went  home  instead ;  this 
was  repeated  several  times.  On  the  last  occasion 
the  teacher  told  him  to  go  home,  and  told  him  he 
could  not  return  to  the  school  until  he  had  taken 
his  punishment.  The  boy  and  his  father  then  had 
an  interview  with  the  principal,  to  whom  the  boy 
said  he  would  receive  his  punishment,  but  could  not 
say  he  was  willing  to  receive  it.  The  principal  told 
the  boy  to  go  home,  and  that  he  would  not  have 
him  in  school  unless  he  said  he  was  willing  to  be 
punished.  The  father  then  requested  of  the  princi- 
pal the  reasons  for  excluding  his  boy,  and  received 
the  following  reply  from  the  principal :  "  In  re- 
sponse to  your  request  why  your  boy  '  has  been 
excluded  from  school,'  I  have  to  say  what  you  al- 
ready know:  (l)  that  he  has  not  been  absolutely 
excluded  from  school ;  and  (2)  that  I  am  willing  to 
receive  the  boy  when  he  comes  in  an  obedient  spirit 


84  POWER    AND    AUTHORITY    OF 

and  willing  to  receive  bis  punishment,  to  be  given 
for  impertinence  to  bis  teacher.  Allow  me  further 
to  state  that,  if  you  are  dissatisfied  witb  my  meth- 
ods of  discipline,  you  can  properly  appeal  to  the 
school  committee." 

In  an  action  against  the  city  for  unlawful  exclu- 
sion from  school  the  Superior  Court  directed  a  ver- 
dict for  the  defendant.  The  boy  then  appealed  to 
the  Supreme  Court,  where  the  judgment  of  the 
lower  court  was  affirmed.  It  was  held  the  boy  was 
not  expelled  from  school.  It  was  also  decided  that 
teachers  may  suspend  pupils,  but  the  expulsion  rests 
with  the  school  authorities. 

Opinion  :  "This  action  is  brought  under  the  stat- 
ute which  provides  that  a  child  unlawfully  excluded 
from  any  public  school  shall  recover  damages  there- 
for in  an  action  of  tort,  to  be  brought  in  the  name 
of  such  child,  by  his  guardian  or  next  friend,  against 
the  city  or  town  by  which  such  school  is  supported." 
(Gen.  Sts.  c.  41,  §  11  ;  Pub.  Sts.  c.  47,  §  12.) 

"  The  evidence,  viewed  in  the  light  most  favorable 
to  the  plaintiff,  tended  to  show  that  he  was  guilty 
of  several  acts  of  disobedience  and  insubordination 
in  the  school,  for  which  the  teacher  sent  him  to  his 
home  ;  that  afterwards  his  father  returned  with  him, 
and  had  an  interview  with  the  principal  of  the 
school,  in  which  the  principal  said  that  the  school 
committee  would  not  allow  him  to  punish  the  plain- 
tiff unless  he  said  that  he  was  willing  to  be  pun- 


SCHOOL    OFFICERS    AND    TEACHERS.  GO 

ished,  and,  upon  the  plaintiff's  refusing  to  say  so, 
be  told  him  'to  go  home,  and  that  he  would  not 
have  him  in  school  unless  he  said  he  was  willing  to 
be  punished.'  The  father  afterwards  requested  the 
teacher  to  state  the  grounds  upon  which  the  boy 
had  been  'excluded  from  school;'  and  received  an 
answer,  which  is  set  forth  in  the  report.  There- 
upon, without  any  appeal  to  the  school  committee, 
this  action  was  brought. 

"  We  are  of  opinion  that  the  Superior  Court 
rightly  ruled  that  the  action  could  not  be  main- 
tained. The  intention  of  the  statute  is  to  give  a 
remedy  to  a  child  who  is  unlawfully  excluded  from 
school  by  the  proper  authorities,  who  in  this  matter 
represent  the  city  or  town.  A  teacher  has  no  au- 
thority to  exclude  a  child  from  school,  unless  he 
acts  under  the  order  of  the  school  committee,  of 
which  there  was  no  evidence  in  this  case.  The  laws 
vest  in  the  school  committee  the  charge  and  super- 
intendence of  the  schools.  They  alone  have  the 
right  to  exclude  any  child  from  school. 

"  If  a  teacher  sends  a  child  home  from  school, 
there  is  no  hardship  in  requiring  the  parent  to  ap- 
peal to  the  committee.  Unless  the  teacher  is  acting 
under  some  order  of  the  committee,  this  is  the  only 
■way  of  ascertaining  whether  the  proper  authorities, 
for  whose  action  the  city  or  town  is  made  responsi- 
ble, have  excluded  the  child.  On  the  other  hand,  to 
hold  that  whenever  a  teacher  sends  a  child  home  as 


86  POWER    AND    AUTHORITY    OF 

a  punishment  the  parent  may  treat  it  as  an  expul- 
sion and  sue  the  city  or  town,  would  lead  to  vexa- 
tious litigation  and  impair  the  discipline  and  useful- 
ness of  the  schools.  {Spear  v.  Cummings,  23  Pick. 
224;  Sherman  v.  Charlestown,  8  Cush.  160;  Hodg- 
kins  v.  RocJcport,  105  Mass.  475;  Learock  v.  Put- 
nam, 111  Mass.  499.) 

"  The  plaintiff  in  this  case,  therefore,  has  failed  to 
show  an  expulsion  from  school  for  which  the  city  is 
liable  under  the  statute." 

Pennsylvania,  1870. — Hughesx.  Ooodell,  3  Pitts.  Rep. 264. 

The  following  case  is  reported  in  the  Pennsylva- 
nia books,  although  not  a  decision  of  the  court  of 
last  resort  of  that  state.  A  decision,  however,  of  so 
righteous  a  character  as  to  merit  a  place  here,  and 
the  approval  of  students  and  their  lady  friends  ev- 
erywhere. 

A  student  in  a  state  normal  school  was,  for  some 
not  very  grievous  matter,  expelled  by  the  principal 
from  that  school  and  all  the  normal  schools  of  the 
state,  no  matter  where  situated,  and  for  all  time  to 
come.  Some  time  after,  an  exhibition  was  given  by 
the  school,  in  the  school  building,  to  which  all  the 
public  were  invited  and  tickets  were  sold.  On  the 
evening  of  the  exhibition  the  expelled  student  and  a 
lady  friend  purchased  tickets  and  were  admitted  to 
the  hall,  taking  seats  near  the  centre  thereof.  About 
the  time  the  hall  was  filled  the  principal  and  assist- 


SCHOOL    OFFICERS    AND    TEACHERS.  87 

ants  forcibly  put  the  young  man  out  of  the  building 
and  out  of  the  school  grounds.  He  then  invoked 
the  law  to  give  him  damages  against  them,  and  was 
successful. 

From  opinion  :  "  While  the  teachers  or  directors 
may  expel  a  scholar  from  the  school  for  sufficient 
reasons,  and  deprive  him  of  its  advantages,  it  does 
not  follow,  by  any  means,  that  they  can  inflict  a 
perpetual  disability  upon  the  offending  student.  If 
he  is  afflicted  with  a  contagious  disease,  or  possesses 
such  a  bad  moral  character  as  to  endanger  the  health 
or  pollute  the  morals  of  those  with  whom  he  comes 
in  contact,  he  may,  from  motives  of  public  policy, 
be  excluded  from  their  association. 

"  But  for  a  technical  violation  of  school  regula- 
tions, while  he  may  be  expelled  from  the  school,  he 
cannot  be  further  punished  by  its  guardians  by  the 
infliction  of  disabilities  in  derogation  of  his  rights  as 
a  citizen.   .   .  . 

"Now,  to  say  that  a  student  expelled  from  a 
school  for  disobedience  to  some  municipal  regula- 
tion should  be  excluded  from  attending  a  prayer- 
meeting  or  public  lecture  in  the  school-house  or 
college  premises  for  all  time  to  come,  without  any 
evidence  of  improper  conduct  or  suspicion  of  im- 
proper purposes,  would  be  an  exercise  of  tyranny 
over  his  private  rights  not  vested  in  the  trustees, 
directors,  or  professors  of  our  educational  institu- 
tions. 


88  POWER    AND    AUTHORITY    OF 

"  A  scholar  may  forfeit  his  rights  to  a  place  in 
the  school  or  college  by  the  violation  of  some  rule 
that  involves  no  moral  turpitude.  And,  so  far  as 
appears,  that  was  the  condition  of  this  plaintiff.  If 
the  rule  of  right  in  the  professors  be  as  great  as  is 
claimed  in  this  case,  he  might  have  been  sued  in 
trespass  or  forcibly  expelled  for  attending  the  fu- 
neral of  his  mother  upon  the  premises  ten  years 
after  his  expulsion." 

Connecticut,  1874. — Peck  v.  Smith,  41  Conn.  442. 

A  district-school  committee-man  in  Connecticut 
went  to  a  school-house  to  build  a  fire.  He  observed 
some  chalk-marks  on  the  funnel,  and  asked  a  large 
boy,  sixteen  years  of  age,  who  was  present  with 
three  or  four  younger  pupils,  if  he  knew  who  made 
them.  The  boy  replied,  "  I  did."  The  committee- 
man asked,  "  What  for  ?"  The  boy  answered,  "  For 
nothing  but  fun  ;  for  no  hurt  and  for  no  good." 
The  committee  then  asked  him  if  he  could  not  get 
off  the  marks  better  than  he  had  done.  The  boy 
replied,  in  a  saucy  way,  that  he  "supposed  that  he 
could  take  a  hoe  or  a  scraper  and  scratch  them  off 
a  little  more  ;  that  the  teacher  was  satisfied  with  it." 
The  committee  then  called  the  boy  saucy  and  im- 
pudent, and  told  him  he  wanted  no  more  of  his 
"  lip."  The  boy  gave  answer  that,  in  his  opinion, 
the  committee-man  was  the  saucier  of  the  two. 
He  advanced  towards  the  boy  with  hand  raised  as 


SCHOOL    OFFICERS    AND    TEACHERS.  89 

if  to  strike  him,  when  the  boy  began  to  swear,  and 
"  dared  him  "  to  strike.  He  then  told  the  boy  he 
must  stop  swearing.  The  boy  replied  that  he  would 
not,  for  him  or  any  "  G — d  d — n  m — n,"  and  asked 
the  committee-man  if  he  desired  him  to  leave  school. 
The  committee-man  told  him  he  did  not,  but  wanted 
him  to  remain  and  behave  himself.  The  boy  con- 
tinuing to  swear,  he  was  told  to  take  his  things  and 
go.  Not  seeming  to  haste,  he  was  told  to  hurry  up. 
lie  responded  that  he  wouldn't  go  until  he  got 
ready,  whereupon  the  committee-man  took  hold  of 
his  shoulder  and  put  him  out  of  the  school-house, 
using  sufficient  force  for  the  purpose.  The  commit- 
tee-man was  then  sued  for  damages.  The  Supreme 
Court  decided  that  the  action  of  the  committee-man 
was  justified ;  and  that  it  was  not  an  expulsion  from 
the  school. 

From  opinion  :  "  From  the  facts  detailed  in  the 
motion  the  act  of  the  defendant  in  removing  the 
plaintiff  from  the  school-house  is  abundantly  justi- 
fied, and  may  properly  be  commended.  The  school 
for  the  day  had  not  commenced.  The  defendant, 
being  at  the  school-house  performing  certain  duties 
connected  with  the  school,  called  the  attention  of 
the  plaintiff  to  certain  acts,  not  specially  culpable  in 
character,  which  he  acknowledged  he  had  commit- 
ted, llis  bearing  and  manner  were  insulting  and 
offensive,  and  the  language  in  which  he  indulged 
was  grossly  profane.     Such  language,  reprehensible 


90  POWER    AND    AUTHORITY    OF 

at  all  times,  should  not  have  been  allowed  to  pass 
with  impunity  from  a  school-boy  of  the  older  class, 
within  the  walls  of  a  school-house,  in  the  presence 
and  hearing  of  younger  pupils.  After  being  told  to 
leave  he  so  conducted  that  it  was  proper  to  remove 
him,  no  unnecessary  force  being  used  to  attain  that 
object.  .  .  . 

"  All  the  force  used  against  the  plaintiff  is  fully 
justified,  and  the  judgment  for  the  defendant  should 
not  be  disturbed.  The  plaintiff  stands  here  on  his 
legal  rights,  and  is  certainly  entitled  to  enjoy  them, 
but  his  position  on  this  record  is  such  that  he 
should  have  them  in  strict  measure,  not  running 
over."  * 

*  A  teacher  in  Vermont  having  forbidden  a  boy  to  further 
attend  school  unless  he  would  make  apology  for  certain  mis- 
conduct, and  he  refusing  to  leave  or  apologize,  sent  for  the 
committee,  who  ordered  the  boy  to  apologize  or  leave.  The 
boy  would  not  leave,  and  the  committee  attempted  to  remove 
him,  when  another  scholar  interfered.  The  last  -  mentioned 
boy  was  found  guilty  of  an  assault  and  battery  upon  the 
committee.  (Slate  v.  Williams,  27  Vt.  755.)  This  case  and 
the  Connecticut  case,  Peck  v.  Smith  ( p.  88 ),  are  the  only 
ones  bearing  upon  the  right  of  school  officials  to  act  in  per- 
son in  the  schoolroom. 

The  following  opinion  of  an  eminent  educational  writer 
upon  this  point  is  deemed  worthy  of  insertion  here.  "  Dur- 
ing the  period  of  visitation  the  committee  have  the  entire 
control  of  the  school.  For  the  time  being  it  is  their  school 
and  the  teacher  is  their  servant.  They  may  decide  what 
classes  shall  be  called  upon  to  perform  exercises,  and  in  what 


SCHOOL    OFFICERS    AND    TEACHERS.  91 

RIGHTS    AND    POWERS    OVER    PUPILS    FOR  ACTS    COM- 
MITTED   OUT    OF    SCHOOL. 

Massachusetts,  1851.  —  Sherman  v.  Charlcstown,  8  Cush.  160. 

A  girl  named  Charlotte  A.  Sherman  was  expelled 
from  the  schools  by  the  school  committee  of 
Charlestovvn,  Mass.,  for  acts  of  immorality  and  li- 
centiousness committed  outside  the  school.  The 
laws  of  that  state  provide  that  any  child  unlawfully 
excluded  from  school  may  have  an  action  for  dam- 
ages against  the  city  or  town  supporting  the  school. 
The  girl  above  named  instituted  an  action,  but  failed 
therein,  the  Supreme  Court  deciding  that  she  was 
lawfully  excluded. 

From  the  opinion :  "  The  argument  for  the  plain- 
tiff is,  that  it  is  the  right  of  every  child  between 
seven  and  sixteen  to  go  to  the  public  school  for 
instruction ;   that  this  right  is  absolute  and  inde- 

studies.  They  may  direct  the  teacher  to  conduct  the  ex- 
amination, or  may  conduct  it  wholly  themselves,  or  they  may 
combine  both  methods.  In  fine,  they  may  dismiss  the 
teacher  for  the  hour,  and  pursue  the  examination  in  his  ab- 
sence. .  .  . 

"Should  any  scholar  misbehave  himself,  or  prove  refractory 
or  contumacious  to  the  committee,  while  they  are  engaged  in 
examining  the  school,  it  is  presumed  they  have  an  authority 
to  suspend,  to  expel,  or  to  punish  on  the  spot,  in  the  same 
way  that  the  teacher  may  do  in  case  of  like  misconduct  com- 
mitted against  himself."  —  (Horace  Mann,  Sec.  Mass.  Board 
Ed.,  10th  Rep.  p.  183.) 


92  POWER    AND    AUTHORITY    OF 

feasible ;  that  if  a  young  person,  male  or  female, 
sustains  a  bad  moral  character,  and  is  guilty  of 
gross  acts  of  notorious  misconduct,  out  of  school, 
provided  there  is  no  violation  of  the  rules  of  the 
school,  and  no  misconduct  in  school,  such  pupil 
cannot  be  rightfully  excluded  for  any  cause,  and  of 
course  every  exclusion  must  be  wrongful.  If  such 
were  the  intent  of  the  legislature,  it  is  strange  that 
they  should  have  used  such  a  significant  qualifying 
term  as  that  of  '  unlawfully,'  implying  that  there 
might  be  a  lawful  exclusion  from  which  no  such 
consequence  would  follow. 

"  On  general  principles  it  would  seem  strange  if, 
in  the  establishment  of  such  a  great  public  institu- 
tion as  that  of  the  public  schools,  in  the  benefits  of 
which  the  whole  community  has  so  deep  and  vital 
an  interest,  there  were  no  power  vested  anywhere 
sufficient  to  protect  the  schools  thus  established 
from  the  noxious  influence  of  any  one  whose  pres- 
ence and  influence  would  be  injurious  to  the  whole, 
and  subversive  of  the  purposes  manifestly  contem- 
plated by  their  establishment.  But  the  court  are 
of  opinion  that  the  schools  have  not  been  left  by 
the  law  without  reasonable  protection  in  this  re- 
spect; and  that  a  power  is  vested  in  the  general 
school  committee,  or  the  master,  with  their  appro- 
bation and  direction,  to  exclude  a  pupil,  although 
within  the  prescribed  age  of  seven  and  sixteen,  for 
good  and  sufficient  cause ;  and  that  the  notorious 


SCHOOL    OFFICERS    AND    TEACHERS.  93 

immoral  propensities,  practices,  and  habits  of  any 
one  claiming  admission  as  a  pupil,  if  proved  to  the 
satisfaction  of  the  committee,  do  constitute  a  good 
and  sufficient  cause  for  such  exclusion. 

"  This  power  is  rather  to  be  drawn  from  the  gen- 
eral provisions  of  the  law  on  this  subject,  and  their 
application  to  the  subject-matter,  than  from  any 
specific  enactment.  Such  authority  must,  from 
the  necessity  of  the  case,  be  conferred  in  general 
terms.  .  .  . 

"  In  the  first  place,  it  is  obvious,  indeed,  it  is  stren- 
uously argued  in  behalf  of  the  plaintiff,  that  these 
schools  are  established  for  the  benefit  of  all  the  in- 
habitants. The  enjoyment  of  this  benefit  is  there- 
fore a  common,  not  an  exclusive  personal,  right ; 
then,  like  other  common  rights,  that  of  way,  for  in- 
stance, it  must  be  exercised  under  such  limitations 
and  restrictions  that  it  shall  not  interfere  with  the 
equal  and  co-extensive  rights  of  others.  Take  the 
case  of  contagious  disease:  can  it  be  doubted  that 
the  presence  of  a  pupil  infected  could  be  lawfully 
prohibited,  not  for  any  fault  or  crime,  or  wrong  con- 
duct, but  simply  because  his  attempt  to  insist  upon 
his  right  to  attend,  under  such  circumstances,  would 
be  dangerous  and  noxious,  and  so  an  interruption 
of  the  equal  and  common  right?  It  seems  to  be 
admitted — if  not,  it  could  hardly  be  questioned — 
that  for  misconduct  in  school,  for  disobedience  to 
its  reasonable  regulations,  a  pupil  may  be  excluded. 


94  POWER    AND    AUTHORITY    OF 

Why  so  ?  There  is  no  express  provision  in  the  law 
authorizing  such  exclusion.  It  results  by  necessary 
implication  from  the  provisions  of  law  requiring 
good  discipline.  It  proves  that  the  right  to  attend 
is  not  absolute  and  unqualified,  but  one  to  be  en- 
joyed by  all  under  reasonable  conditions. 

"But  it  is  argued,  that  though  good  discipline 
may  be  maintained  within  the  school,  yet  the  mas- 
ter and  the  committee  have  no  right  to  look  be- 
yond the  walls  of  the  school,  to  take  notice  of  the 
conduct  of  its  pupils.  We  cannot  perceive  the  force 
of  this  distinction,  pressed  to  the  extent  to  which 
the  argument  attempts  to  carry  it.  Truancy  is  a 
fault  committed  wholly  beyond  the  precincts  of  the 
school,  yet  no  example  is  more  contaminating,  no 
malconduct  more  subversive  of  discipline.  May  not 
an  incorrigible  truant  be  expelled,  not  as  a  punish- 
ment merely,  but  as  a  protection  to  others  from  in- 
jurious example  and  influence.  Children  of  both 
sexes,  and  of  various  ages,  capacities,  and  suscepti- 
bilities must  be  thrown  together  on  their  way  to 
and  from  school,  at  their  amusements  out  of  school- 
hours,  under  such  circumstances  as  to  exert  a  pow- 
erful influence  on  each  other. 

"  The  power,  in  the  last  resort,  we  think,  is  vested 
in  the  school  committee.  By  Bev.  Sts.  c.  23,  §  10, 
the  inhabitants  of  every  town  are  required  to 
choose  by  ballot  a  school  committee,  who  shall 
have  the  general  charge  and  superintendence  of  all 


SCHOOL    OFFICERS    AND    TEACHERS.  95 

the  public  schools  in  such  town.  In  some  respects 
their  duties  are  specially  prescribed ;  in  others  they 
result  from  the  general  power  of  superintendence 
and  visitation.  .  .  . 

"  Supposing,  then,  that  the  school  committee  have 
power,  upon  a  proper  occasion,  to  exclude  a  pupil, 
we  can  have  no  doubt  that  open,  gross  immorality 
in  a  female,  manifested  by  licentious  propensities, 
language,  manners,  and  habits,  amounting  even  to 
actual  prostitution,  although  not  manifested  in  the 
school,  are  a  sufficient  ground  on  which  to  prohibit 
her  attending  the  public  school.  .  .  . 

"  It  must  be  considered  that  the  power  of  all  teach- 
ers of  schools,  and  of  the  committees  or  other  man- 
agers under  whose  direction  they  act,  is  a  parental 
authority,  to  be  exercised  for  the  best  good  of  the 
whole.  It  was  said  in  the  argument  that  if  the 
plaintiff  had  violated  the  laws  of  the  country,  be- 
ing of  an  age  to  be  responsible  for  her  conduct,  she 
was  liable  to  be  prosecuted  and  punished,  before 
the  tribunals  of  justice.  Suppose  she  was  so  liable, 
she  was  not  the  less  unfit  to  be  the  member  of  a 
public  school.  The  two  powers  are  vested  and  are 
to  be  exercised  diverso  intuitu,  the  one  to  punish  of- 
fences against  the  law,  the  other  to  maintain  the 
purity  and  discipline  of  the  school,  and  secure  the 
great  public  objects  for  which  it  was  established. 
The  court  are  therefore  satisfied  that,  upon  proof 
of  the  facts  tendered  by  the  defendants,  the  school 


96  POWER    AND    AUTHORITY    OF 

committee  were  justified  in  excluding  the  plaintiff, 
and  that  such  exclusion  was  not  wrongful." 

Vermont,  1859. — Lander  v.  Seaver,  32  Vt.  114. 

Peter  Lander,  Jr.,  aged  about  eleven,  attended  a 
school  in  Burlington,  Vt.,  of  which  a  man  named 
A.  B.  Seaver  was  teacher.  One  day,  about  an  hour 
and  a  half  after  the  close  of  the  school  in  the  after- 
noon, and  after  he  had  returned  to  his  home,  and 
while  driving  his  father's  cow  from  the  pasture  by 
the  teacher's  house,  Lander  called  the  teacher  "  old 
Jack  Seaver."  This  language  was  used  in  the  pres- 
ence of  some  fellow-pupils  and  within  the  hearing 
of  Seaver.  The  next  morning  after  the  school  was 
opened  the  teacher  reprimanded  Lander  for  using 
the  insulting  language  the  evening  before,  and  then 
whipped  him  with  a  small  rawhide.  The  boy  then 
brought  action  of  trespass  against  the  teacher  for 
assault  and  battery. 

From  opinion :  "  The  first  question  presented  is, 
has  a  schoolmaster  the  right  to  punish  his  pupils  for 
acts  of  misbehavior  committed  after  the  school  has 
been  dismissed,  and  the  pupil  has  returned  home  and 
is  engaged  in  his  father's  service  ? 

"  It  is  conceded  that  his  right  to  punish  extends 
to  school-hours,  and  there  seems  to  be  no  reasonable 
doubt  that  the  supervision  and  control  of  the  mas- 
ter over  the  scholar  extend  from  the  time  he  leaves 
home  to  go  to  school  till  he  returns  home  from 


SCnOOL    OFFICERS    AND    TEACHERS.  97 

school.  Most  parents  would  expect  and  desire  that 
teachers  should  take  care  that  their  children,  in  go- 
ing to  and  returning  from  school,  should  not  loiter 
or  seek  evil  company,  or  frequent  vicious  places  of 
resort ;  but  in  this  case,  as  appears  from  the  bill  of 
exceptions,  the  offence  was  committed  an  hour  and 
a  half  after  the  school  was  dismissed,  and  after  the 
boy  had  returned  home  and  while  he  was  engaged 
in  his  father's  service.  When  the  child  has  returned 
home,  or  to  his  parent's  control,  then  the  parental 
authority  is  resumed  and  the  control  of  the  teacher 
ceases,  and  then,  for  all  ordinary  acts  of  misbehav- 
ior, the  parent  alone  has  the  power  to  punish.  It  is 
claimed,  however,  that  in  this  case  the  boy, "  while  in 
the  presence  of  other  pupils  of  the  same  school,  used 
towards  the  master  and  in  his  hearing  contemptu- 
ous language,  with  a  design  to  insult  him,  and  which 
had  a  direct  and  immediate  tendency  to  bring  the 
authority  of  the  master  over  his  pupils  into  con- 
tempt, and  lessen  his  hold  upon  them  and  his  con- 
trol over  the  school.  This,  under  the  charge  of  the 
court,  must  have  been  found  by  the  jury. 

"  This  misbehavior,  it  is  especially  to  be  ob- 
served, has  a  direct  and  immediate  tendency  to  in- 
jure the  school,  to  subvert  the  master's  authority, 
and  to  beget  disorder  and  insubordination.  It  is 
not  misbehavior  generally  or  towards  other  per- 
sons, or  even  towards  the  master  in  matters  in  no 
way  connected  with  or  affecting  the  school.  For 
7 


98  POWER    AND    AUTHORITY    OF 

as  to  such  misconduct,  committed  by  the  child  af- 
ter his  return  home  from  school,  we  think  tbe  par- 
ents, and  they  alone,  have  the  power  of  punish- 
ment. 

"  But  where  the  offence  has  a  direct  and  immedi- 
ate tendency  to  injure  the  school  and  bring  the  mas- 
ter's authority  into  contempt,  as  in  this  case,  when 
done  in  tbe  presence  of  other  scholars  and  of  the 
master,  and  with  a  design  to  insult  him,  wre  think 
he  has  the  right  to  punish  the  scholar  for  such  acts 
if  he  comes  again  to  school. 

"  The  misbehavior  must  not  have  merely  a  remote 
and  indirect  tendency  to  injure  the  school.  All  im- 
proper conduct  or  language  may  perhaps  have,  by 
influence  and  example,  a  remote  tendency  of  that 
kind.  But  tbe  tendency  of  the  acts  so  done  out  of 
the  teacher's  supervision,  for  which  he  may  punish, 
must  be  direct  and  immediate  in  their  bearing  upon 
the  welfare  of  the  school,  or  the  authority  of  the 
master  and  the  respect  due  to  him.  Cases  may 
readily  be  supposed  which  lie  very  near  the  line, 
and  it  will  often  be  difficult  to  distinguish  between 
the  acts  which  have  such  an  immediate  and  those 
which  have  such  a  remote  tendency.  Hence  each 
case  must  be  determined  by  its  peculiar  circum- 
stances. 

"  Acts  done  to  injure  or  deface  tbe  schoolroom, 
to  .destroy  the  books  of  scholars,  or  tbe  books  or 
apparatus  for  instruction,  or  the  instruments  of  pun- 


SCHOOL    OFFICERS    AND    TEACHERS.  99 

ishment  of  the  master ;  language  used  to  other  schol- 
ars to  stir  up  disorder  and  insubordination,  or  to 
heap  odium  and  disgrace  upon  the  master ;  writ- 
ings and  pictures  placed  so  as  to  suggest  evil  and 
corrupt  language,  images,  and  thoughts  to  the  youth 
who  must  frequent  the  school — all  such  or  similar 
acts  tend  directly  to  impair  the  usefulness  of  the 
school,  the  welfare  of  the  scholars,  and  the  authority 
of  the  master.  By  common  consent  and  by  the 
uniform  custom  in  our  New  England  schools  the 
master  has  always  been  deemed  to  have  the  right 
to  punish  such  offences.  Such  power  is  essential 
to  the  preservation  of  order,  decency,  decorum,  and 
good  government  in  schools." 

Iowa,  1870. — Murphy  v.  Directors,  30  Iowa,  429. 

The  directors  of  a  district  in  Iowa  made  a  visit 
to  a  school,  and,  after  the  close  of  an  exercise  in 
rhetoric,  made  remarks  commending  and  criticising 
what  in  their  judgment  deserved.  A  few  days 
afterwards  one  of  tlie  pupils,  a  boy  named  Murphy, 
wrote  and  had  published  in  a  newspaper  an  article 
which,  it  was  alleged,  held  the  directors  up  to  ridi- 
cule, was  impudent,  scandalous,  and  tended  to  im- 
pair the  authority  and  usefulness  of  the  board.  The 
board,  learning  that  said  article  was  creating  insub- 
ordination in  the  school  and  inciting  disregard  of 
their  authority  in  other  pupils,  directed  the  teacher 
to  suspend  Murphy  until  such  time  as  he  would 


100  POWER    AND    AUTHORITY    OF 

apologize.  The  boy  instituted  action  against  the 
directors,  and  was  successful. 

From  opinion  :  "...  And  this  question  itself 
rests  upon  the  extent  of  the  power  conferred  by 
statute  upon  the  boards  of  school  directors  in  re- 
spect to  the  suspension  of  pupils  from  the  privi- 
leges of  the  schools.  Our  statute  provides  that  the 
directors  shall  have  power  to  dismiss  any  pupils 
from  school  for  gross  immorality  or  for  persistent 
violation  of  the  regulations  of  the  school,  and  to 
readmit  them,  etc.  (Rev.  §  2054),  and  it  is  also 
made  their  duty  to  aid  the  teachers  in  establish- 
ing and  enforcing  rules  for  the  government  of  the 
schools.     (Laws  of  1862,  c.  172,  §  27.) 

"  The  answer  in  this  case  does  not  aver  that  this 
plaintiff  was  guilty  of,  or  even  charged  with,  gross 
immorality  or  the  violation  of  any  regulation  of  the 
school ;  nor  is  it  averred  that  the  article  plaintiff  is 
charged  with  having  written  and  caused  to  be  pub- 
lished was  immoral  or  done  in  violation  of  any  reg- 
ulation of  the  school.  The  statute  does  not  author- 
ize the  board  of  directors  to  suspiend  pupils  for  acts 
tending  to  destroy  the  peace  and  harmony  of  the 
school,  or  inciting  insubordination  in  others,  or  for 
ridicule  of  the  directors,  in  the  absence  of  any  reg- 
ulation prohibiting  such  acts.  And  while  we  would 
not  interfere  with  the  action  of  the  board  within  the 
range  of  their  jurisdiction  and  legal  discretion,  we 
cannot  sanction  an  exercise  of  authority  not  con- 


SCHOOL    OFFICERS    AND    TEACHERS.  101 

ferred  by  statute,  or  the  enforcement  of  penalties 
essentially  ex  post  facto,  under  the  guise  of  sound 
discretion.  When  proper  regulations  for  the  gov- 
ernment of  the  school  are  made  and  brought  to  the 
knowledge  of  the  pupils,  they  may  be  held  to  the 
penalties  for  their  violation ;  but  for  the  board  to 
visit  the  severest  penalty  within  their  power  upon  a 
pupil  for  an  act  out  of  school  not  prohibited  either 
expressly  or  by  implication,  even  by  a  general  regu- 
lation, it  is  at  variance  with  both  the  letter  and 
spirit  of  our  laws."  * 

*  But  in  a  later  case  in  Iowa,  hereinbefore  reported  (ante, 
p.  3,  31  Iowa,  562),  where  expulsion  from  school  was  di- 
rected for  violation  of  rule  in  relation  to  absence  and  tardi- 
ness, the  following  rule  was  laid  down  and  the  Vermont  case 
cited  in  support  of  it:  "If  the  effect  of  acts  done  out  of 
school -houses  reach  within  the  schoolroom  during  school- 
hours,  and  are  detrimental  to  good  order  and  the  best  inter- 
ests of  the  pupils,  it  is  evident  that  such  acts  may  be  forbid- 
den. Truancy  is  a  fault  committed  away  from  school.  Can 
it  be  pretended  that  it  cannot  be  reached  for  correction  by 
the  school  board  and  teachers  ?  A  pupil  may  engage  in 
sports  beyond  school  that  will  render  him  unfit  to  study  dur- 
ing school-hours.  Cannot  these  sports  be  forbidden  ?  The 
view  that  acts,  to  be  within  the  authority  of  the  school  board 
and  teachers  for  discipline  and  correction,  must  be  done  with- 
in school-hours,  is  narrow  and  without  regard  to  the  spirit  of 
the  law  and  the  best  interests  of  our  common  schools.  It  is 
in  conflict,  too,  with  authority.  See  upon  this  point  Zan- 
der v.  Seaver,  32  Vt.  114;  Sherman  v.  Chariestown,  8  Cush. 
160.  The  doctrine  we  have  above  endeavored  to  state  is, 
in  these  cases,  distinctly  announced." 


102  POWER    AND    AUTHORITY    OF 

Missouri,  1877. —  Dritt  v.  Snodgrass,  66  Mo.  286. 

The  school  directors  of  the  town  of  Tipton,  in 
Missouri,  made  a  rule  that  no  pupil  should  attend 
social  parties  during  the  school  term.  A  boy  named 
Dritt,  with  the  permission  of  his  father  and  mother, 
attended  an  evening  party  composed  of  the  young 
people  of  the  town.  And  it  was  alleged  their  con- 
duct "  was  strictly  innocent,  inoffensive,  and  moral, 
tending  only  to  social  culture."  For  thus  attending 
the  party,  in  violation  of  the  rule,  he  was  expelled 
from  school.  He  then  sued  the  directors,  and  it  was 
held  by  the  Supreme  Court  that,  while  he  could  not 
maintain  an  action  against  the  directors  because  they 
had  not  acted  maliciously,  they  had  exceeded  their 
authority  in  making  the  rule. 

From  opinion :  "  The  directors  of  a  school  dis- 
trict are  invested  with  the  power  and  authority  to 
make  and  execute  all  needful  rules  and  regulations 
for  the  government,  management,  and  control  of 
such  school  as  they  may  think  proper,  not  incon- 
sistent with  the  laws  of  the  land.  Under  the  pow- 
er thus  conferred  the  directors  are  not  authorized 
to  prescribe  a  rule  which  undertakes  to  regulate 
the  conduct  of  the  children  within  the  district, 
who  have  a  right  to  attend  the  school,  after  they 
are  dismissed  from  it  and  remitted  to  the  custody 
and  care  of  the  parent  or  guardian.  They  have 
the  unquestioned  right  to  make  needful  rules  for 


SCHOOL    OFFICERS    AND    TEACHERS.  103 

the  control  of  the  pupils  while  at  school,  and  un- 
der the  charge  of  the  person  or  persons  who  teach 
it,  and  it  would  he  the  duty  of  the  teacher  to  en- 
force such  rules  when  made.  While  in  the  teacher's 
charge  the  parent  would  have  no  right  to  invade 
the  schoolroom  and  interfere  with  him  in  its  man- 
agement. On  the  other  hand,  when  the  pupil  is  re- 
leased, and  sent  back  to  his  home,  neither  the  teach- 
er nor  directors  have  the  authority  to  follow  him 
thither  and  govern  his  conduct  while  under  the  pa- 
rental eye. 

"  It  certainly  could  not  have  been  the  design  of 
the  legislature  to  take  from  the  parent  the  control  of 
his  child  while  not  at  school  and  invest  it  in  a  board 
of  directors  and  teacher  of  a  school.  If  they  can 
prescribe  a  rule  which  denies  to  the  parent  the  right 
to  allow  his  child  to  attend  a  social  gathering,  ex- 
cept upon  pain  of  expulsion  from  a  school  which 
the  law  gives  him  the  right  to  attend,  may  they  not 
prescribe  a  rule  which  would  forbid  the  parent  from 
allowing  the  child  to  attend  a  particular  church,  or 
any  church  at  all,  and  thus  step  in,  in  loco  parentis, 
and  supersede  entirely  parental  authority  ?  For  of- 
fences committed  by  the  scholar  while  at  school,  he 
is  amenable  to  the  laws  of  the  school ;  when  not  at 
school,  but  under  the  charge  of  the  parent  or  guar- 
dian, he  is  answerable  alone  to  him. 

"A  person  teaching  a  private  school  may  say 
upon  what  terms  he  or  she  will  accept  scholars,  and 


104  POWER    AND    AUTHORITY    OF 

may  demand,  before  receiving  a  scholar  to  be  taught, 
that  the  parents  shall  surrender  so  much  of  his  or 
her  parental  authority  as  not  to  allow  the  scholar, 
during  the  term,  to  attend  social  parties,  balls,  thea- 
tres, etc.,  except  on  pain  of  expulsion.  This  would 
be  a  matter  of  contract,  and  no  one  has  a  right  to 
send  a  scholar  to  such  a  school  except  on  the  terms 
prescribed  by  those  who  teach  it. 

"This  is  not  so  in  regard  to  public  schools,  which 
every  child  within  school  age  has  a  right,  under  the 
law,  to  attend,  subject,  while  so  attending,  to  be  gov- 
erned by  such  needful  rules  as  may  be  prescribed. 
When  the  schoolroom  is  entered  by  the  pupil  the 
authority  of  the  parent  ceases  and  that  of  the 
teacher  begins ;  when  sent  to  his  home  the  author- 
ity of  the  teacher  ends  and  that  of  the  parent  is  re- 
sumed. For  his  conduct  when  at  school  he  may 
be  punished  or  even  expelled,  under  proper  circum- 
stances ;  for  his  conduct  when  at  home  he  is  sub- 
ject to  domestic  control.  The  directors,  in  prescrib- 
ing the  rule  that  scholars  who  attended  a  social  party 
should  be  expelled  from  school,  went  beyond  their 
power  and  invaded  the  right  of  the  parent  to  gov- 
ern the  conduct  of  his  child  when  solely  under  his 
charge." 


SCHOOL    OFFICERS    AND    TEACHERS.  105 


DECISIONS    IN   RELATION   TO    CORPORAL    PUNISHMENT. 

North  Carolina,  1837. — State  v.  Pcndcvgrass,  2  Dev.  &  Batt. 
365. 

A  lady  teacher  in  North  Carolina,  after  mild  treat- 
ment had  failed,  whipped  one  of  her  young  pupils 
with  a  switch,  leaving  marks  upon  the  hody  ;  which 
marks,  however,  disappeared  in  a  few  days.  The 
teacher  was  indicted  and  tried  for  assault  and  bat- 
tery. The  following  opinion  of  the  Supreme  Court, 
sustaining  her  action,  is  considered  as  defining  the 
extreme  limit  of  the  teacher's  authority  as  to  bodily 
punishment. 

Opinion :  "  It  is  not  easy  to  state  with  precision 
the  power  which  the  law  grants  to  schoolmasters 
and  teachers  with  respect  to  the  correction  of  their 
pupils.  It  is  analogous  to  that  which  belongs  to 
parents,  aud  the  authority  of  the  teacher  is  regarded 
as  a  delegation  of  parental  authority.  One  of  the 
most  sacred  duties  of  parents  is  to  train  up  and 
qualify  their  children  for  becoming  useful  and  vir- 
tuous members  of  society ;  this  duty  cannot  be  ef- 
fectually performed  without  the  ability  to  command 
obedience,  to  control  stubbornness,  to  quicken  dili- 
gence, and  to  reform  bad  habits ;  and  to  enable  him 
to  exercise  this  salutary  sway  he  is  armed  with  the 
power  to  administer  moderate  correction,  when  he 
shall  believe  it  to  be  just  and  necessary.  The 
teacher  is  the  substitute  of  the  parent ;  is  charged 


106  POWER    AND    AUTHORITY    OF 

in  part  with  the  performance  of  his  duties,  and  in 
the  exercise  of  those  delegated  duties  is  invested 
with  his  power. 

"  The  law  has  not  undertaken  to  prescribe  stated 
punishments  for  particular  offences,  but  has  con- 
tented itself  with  the  general  grant  of  the  power  of 
moderate  correction,  and  has  confided  the  gradation 
of  punishments,  within  the  limits  of  this  grant,  to 
the  discretion  of  the  teacher.  The  line  which  sepa- 
rates moderate  correction  from  immoderate  punish- 
ment can  only  be  ascertained  by  reference  to  gen- 
eral principles.  The  welfare  of  the  child  is  the 
main  purpose  for  which  pain  is  permitted  to  be  in- 
flicted. Any  punishment,  therefore,  which  may  se- 
riously endanger  life,  limbs,  or  health,  or  shall  dis- 
figure the  child,  or  cause  any  other  permanent  in- 
jury, may  be  pronounced  in  itself  immoderate,  as 
not  only  being  unnecessary  for,  but  inconsistent 
with,  the  purpose  for  which  correction  is  authorized. 
But  any  correction,  however  severe,  which  produces 
temporary  pain  only,  and  no  permanent  ill,  cannot 
be  so  pronounced,  since  it  may  have  been  necessary 
for  the  reformation  of  the  child,  and  does  not  in- 
juriously affect  its  future  welfare. 

"  We  hold,  therefore,  that  it  may  be  laid  down  as 
a  general  rule,  that  teachers  exceed  the  limits  of 
their  authority  when  they  cause  lasting  mischief ; 
but  act  within  the  limits  of  it  when  they  inflict 
temporary  pain. 


SCHOOL    OFFICERS    AND    TEACHERS.  107 

"  When  the  correction  administered  is  not  in  it- 
self immoderate,  and  therefore  beyond  the  authority 
of  the  teacher,  its  legality  or  illegality  must  depend 
entirely,  we  think,  on  the  qui  animo  with  which  it 
was  administered.  Within  the  sphere  of  his  au- 
thority the  master  is  the  judge  when  correction  is 
required,  and  of  the  degree  of  correction  necessary  ; 
and,  like  all  others  intrusted  with  a  discretion,  he 
cannot  be  made  penally  responsible  for  error  of 
judgment,  but  only  for  wickedness  of  purpose.  The 
best  and  wisest  of  mortals  are  weak  and  erring 
creatures,  and  in  the  exercise  of  functions  in  which 
their  judgment  is  to  be  the  guide  cannot  be  right- 
fully required  to  engage  for  more  than  honesty  of 
purpose  and  diligence  of  exertion.  His  judgment 
must  be  presumed  correct,  because  lie  is  the  judge, 
and  also  because  of  the  difficulty  of  proving  the  of- 
fence, or  accumulation  of  offences,  that  called  for 
correction ;  of  showing  the  peculiar  temperament, 
disposition,  and  habits  of  the  individual  corrected ; 
and  of  exhibiting  the  various  milder  means  that 
may  have  been  ineffectually  used  before  correction 
was  resorted  to. 

"  But  the  master  may  be  punishable  when  he 
does  not  transcend  the  powers  granted,  if  he  grossly 
abuse  them.  If  he  use  his  authority  as  a  cover  for 
malice,  and,  under  pretence  of  administering  correc- 
tion, gratify  his  own  bad  passions,  the  mask  of  the 
judge  shall  be  taken  off,  and  he  will  stand  amenable 


108  POWER    AND    AUTHORITY    OF 

to  justice  as  an  individual  not  invested  with  judicial 
power. 

"  We  believe  that  these  are  the  rules  applicable  to 
the  decision  of  the  case  before  us.  If  they  be,  there 
was  error  in  the  instruction  given  to  the  jury,  that 
if  the  child  was  whipped  by  the  defendant  so  as  to 
occasion  the  marks  described  by  the  prosecutor  the 
defendant  had  exceeded  her  authority,  and  was  guil- 
ty as  charged.  The  marks  were  all  temporary,  and 
in  a  short  time  all  disappeared.  No  permanent  in- 
jury was  done  to  the  child.  The  only  appearances 
that  could  warrant  the  belief  or  suspicion  that  the 
correction  threatened  permanent  injury  were  the 
bruises  on  the  neck  and  the  arms ;  and  these,  to  say 
the  least,  were  too  equivocal  to  justify  the  court  in 
assuming  that  they  did  threaten  such  mischief.  We 
think  that  the  instruction  on  this  point  should  have 
been,  that  unless  the  jury  could  clearly  infer  from 
the  evidence  that  the  correction  inflicted  had  pro- 
duced, or  was  in  its  nature  calculated  to  produce, 
lasting  injury  to  the  child,  it  did  not  exceed  the 
limits  of  the  power  which  had  been  granted  to  the 
defendant.  We  think,  also,  that  the  jury  should 
have  been  further  instructed,  that  however  severe 
the  pain  inflicted,  and  however,  in  their  judgment, 
it  might  seem  disproportionate  to  the  alleged  negli- 
gence or  offence  of  so  young  and  tender  a  child, 
yet  if  it  did  not  produce  or  threaten  lasting  mis- 
chief it  was  their  duty  to  acquit  the  defendant;  un- 


SCHOOL    OFFICERS    AND    TEACHERS.  109 

less  the  facts  testified  induced  a  conviction  in  their 
minds  that  the  defendant  did  not  act  honestly  in 
the  performance  of  duty  according  to  her  sense  of 
right,  but,  under  the  pretext  of  duty,  was  gratifying 
malice. 

"  We  think  that  rules  less  liberal  towards  teach- 
ers cannot  be  laid  down  without  breaking  in  upon 
the  authority  necessary  for  preserving  discipline 
and  commanding  respect;  and  that  although  these 
rules  leave  it  in  their  power  to  commit  acts  of  in- 
discreet severity  with  legal  impunity,  these  indis- 
cretions will  probably  find  their  check  and  correc- 
tion in  parental  affection  and  in  public  opinion  ; 
and,  if  they  should  not,  that  they  must  be  tolerated 
as  a  part  of  those  imperfections  and  inconveniences 
which  no  human  laws  can  wholly  remove  or  re- 
dress." 

Vermont,  1846.— Hathaway  v.  Rice,  19  Vt.  102. 

A  Vermont  schoolmaster  was  charged  with  gross 
abuse  of  one  of  his  scholars  by  beating  with  clubs, 
sticks,  fists,  etc.  The  teacher  demurred,  as  it  is 
termed  in  legal  phrase,  to  the  declaration  or  state- 
ment of  injury  of  the  plaintiff,  relying  by  his  de- 
murrer upon  his  office  of  schoolmaster ;  that  the 
punishment  was  inflicted  by  him  as  such,  and  was 
moderate,  not  proving  to  the  court  the  real  facts  in 
justification.  This,  under  a  rule  of  legal  pleading, 
was  admitting  the  truth  of  plaintiff's  charge,  and 


110  POWER    AND    AUTHORITY    OF 

defending  only  upon  the  point  that  "because  he  was 
a  teacher  he  was  not  liable.  The  Supreme  Court 
overruled  his  demurrer,  and  in  course  of  the  opin- 
ion say  : 

"  We  are  brought,  then,  to  the  question,  whether 
a  sufficient  justification  is  disclosed  for  all  that  is 
alleged  against  the  defendant.  The  plea  is  based 
upon  the  right  of  a  schoolmaster  to  correct  his 
scholar,  a  right  which  has  always  been  practically 
and  judicially  sanctioned.  But  it  rests  upon  similar 
ground  as  the  right  to  correct  a  child  or  servant, 
and  the  chastisement  must  not  exceed  the  limits 
of  a  moderate  correction,  (l  Hawk.  P.  C.  130;  1 
Stephen's  N.  P.  219.)  And  though  courts  are  bound, 
with  a  view  to  the  maintenance  of  necessary  order 
and  decorum  in  schools,  to  look  with  all  reasonable 
indulgence  upon  the  exercise  of  this  right,  yet  when- 
ever the  correction,  as  confessed  by  the  pleadings  or 
as  proved  on  trial,  shall  appear  to  have  been  clearly 
excessive  and  cruel,  it  must  be  adjudged  illegal." 

Maine,  1847. — Stevens  v.  Fassett,  21  Me.  266. 

In  a  school  in  Maine  a  pupil,  a  large  boy  over 
twenty-one  years  of  age,  who  had  been  permitted  to 
occupy  the  teacher's  desk,  refused  to  leave  it.  The 
Supreme  Court  decided  that  sufficient  force  could 
be  used  by  the  master  to  get  possession  of  his  chair 
and  desk,  and  he  could  ask  assistance  of  others 
without  the  direction  or  knowledge  of  the  commit- 


SCHOOL    OFFICERS    AND    TEACHERS.  Ill 

tee.  The  following  general  principles  concerning 
corporal  punishment,  and  expressing  the  law  as  laid 
down  by  the  common-law  writers  cited  therein,  are 
taken  from  the  opinion. 

"The  right  of  the  parent  to  keep  the  child  in  or- 
der and  obedience  is  secured  by  the  common  law. 
He  may  lawfully  correct  his  child,  being  under  age, 
in  a  reasonable  manner,  for  this  is  for  the  benefit  of 
his  education.  He  may  delegate  also  a  part  of  his 
parental  authority,  during  his  life,  to  the  tutor  or 
schoolmaster  of  his  child,  who  is  then  in  loco  pa- 
rentis, and  has  such  portion  of  the  power  of  the 
parent  committed  to  his  charge — viz.,  that  of  re- 
straint and  correction — as  may  be  necessary  to  an- 
swer the  purpose  for  which  he  is  employed,  (l 
Black  Com.  453,  454 ;  1  Hale's  P.  C.  473,  474.) 
*  The  rights  of  parents  [over  their  children]  result 
from  their  duties.  As  they  are  bound  to  maintain 
and  educate  their  children,  the  law  has  given  them 
the  right  to  such  authority ;  and,  in  support  of  that 
authority,  a  right  to  the  exercise  of  such  discipline 
as  may  be  requisite  for  the  discharge  of  their  sacred 
trust.'  'The  power  allowed  by  law  to  the  parent 
over  the  person  of  the  child  may  be  delegated  to  a 
tutor  or  instructor,  the  better  to  accomplish  the  pur- 
poses of  education.'  (2  Kent's  Com.  169  ,170.)  Al- 
though the  town  school  is  instituted  by  the  author- 
ity of  the  statute,  the  children  are  to  be  considered 
as  put  in  charge  of  the  instructor  for  the  same  pur- 


112  POWER    AND    AUTHORITY    OF 

pose,  and  he  clothed  with  the  same  power  as  when 
he  is  directly  employed  by  the  parents.  The  power 
of  the  parent  to  restrain  and  coerce  obedience  in 
children  cannot  be  doubted,  and  it  has  seldom  or 
never  been  denied.  The  power  delegated  to  the 
master  by  the  parent  must  be  accompanied  for  the 
time  being  with  the  same  right,  as  incidental,  or  the 
object  sought  must  fail  of  accomplishment. 

"  The  practice,  which  has  generally  prevailed  in 
our  town  schools  since  the  settlement  of  the  coun- 
try, has  been  in  accordance  with  the  law  thus  ex- 
pressed, and  resort  has  been  had  to  personal  chas- 
tisement where  milder  means  of  restraint  have  been 
unavailing.  .  .  . 

"  If  the  teacher  is  authorized  to  inflict  corporal 
punishment  for  the  purpose  of  securing  obedience 
to  his  reasonable  rules  and  commands,  and  thereby 
to  render  the  school  what  it  is  contemplated  by  the 
law  that  it  shall  be,  it  follows  that  he  has  the 
right  to  direct  how  and  when  each  pupil  shall  at- 
tend to  his  appropriate  duties,  and  the  manner  in 
which  they  shall  demean  themselves,  provided  that 
in  all  this  nothing  unreasonable  is  demanded.  It 
cannot  be  contended  that,  as  the  teacher  has  respon- 
sible duties  to  perform,  he  is  not  entitled  to  the  rea- 
sonable means  by  which  to  perform  them.  He  has 
a  right  to  the  house  prepared  by  the  district,  and 
the  seat  in  it  assigned  for  his  occupation.  If  a 
scholar  should  attempt  to  debar  him  from  entering 


SCHOOL    OFFICERS    AND    TEACHERS.  113 

the  former,  or  should  occupy  the  latter  to  the  ex- 
clusion of  the  teacher,  he  would  be  a  subject  of 
punishment,  and  force  sufficient,  at  least,  to  obtain 
their  possession  could  be  used,  if  there  was  an  abso- 
lute refusal  on  the  part  of  the  usurper  to  surrender 
them." 

Indiana,  1853. — Cooper  v.  JUcJunkin,  4  hid.  291. 

The  following  opinion  as  to  the  right  and  meas- 
ure of  bodily  punishment  was  rendered  in  a  case  in 
the  Supreme  Court  of  Indiana.  Action  by  pupil 
against  teacher  for  assault. 

"  The  law  still  tolerates  corporal  punishment  in 
the  schoolroom.  The  authorities  are  all  that  way, 
and  the  legislature  has  not  thought  proper  to  inter- 
fere. The  public  seem  to  cling  to  a  despotism  in 
the  government  of  schools  which  has  been  discarded 
everywhere  else.  Whether  such  training  be  conge- 
nial to  our  institutions,  and  favorable  to  the  full  de- 
velopment of  the  future  man,  is  worthy  of  serious 
consideration,  though  not  for  us  to  discuss. 

"  In  one  respect  the  tendency  of  the  rod  is  so  ev- 
idently evil  that  it  might  perhaps  be  arrested  on  the 
ground  of  public  policy.  The  practice  has  an  in- 
herent proneness  to  abuse.  The  very  act  of  whip- 
ping engenders  passion,  and  very  generally  leads  to 
excess.  Where  one  or  two  stripes  only  were  at  first 
intended,  several  usually  follow,  each  increasing  in 
vigor  as  the  act  of  striking  inflames  the  passions. 


114  POWER    AND    AUTHORITY    OF 

This  is  a  matter  of  daily  observation  and  experience. 
Hence  the  spirit  of  the  law  is,  and  the  leaning  of 
the  courts  should  be,  to  discountenance  a  practice 
which  tends  to  excite  human  passions  to  heated  and 
excessive  action,  ending  in  abuse  and  breaches  of 
the  peace.  Such  a  system  of  petty  tyranny  cannot 
be  watched  too  cautiously,  nor  guarded  too  strictly. 
The  tender  age  of  the  sufferers  forbids  that  its 
slightest  abuses  should  be  tolerated.  So  long  as 
the  power  to  punish  corporally  in  school  exists, 
it  needs  to  be  put  under  wholesome  restriction. 
Teachers  should,  therefore,  understand  that  when- 
ever correction  is  administered  in  anger  or  insolence, 
or  in  any  other  manner  than  moderation  and  kind- 
ness, accompanied  with  that  affectionate  moral  sua- 
sion so  eminently  due  from  one  placed  by  the  law 
in  loco  parentis — in  the  sacred  relation  of  parent — 
the  courts  must  consider  them  guilty  of  assault  and 
battery,  the  more  aggravated  and  wanton  in  propor- 
tion to  the  tender  years  and  dependent  position  of 
the  pupil.  .  .  .  All  that  can  be  done  without  the 
aid  of  legislation  is  to  hold  each  case  strictly  within 
the  rule ;  and  if  the  correction  be  in  anger,  or  in 
any  other  respect  immoderately  or  improperly  ad- 
ministered, to  hold  the  unworthy  perpetrator  guilty 
of  assault  and  battery.  .  .  . 

"  The  law  having  elevated  the  teacher  to  the  place 
of  the  parent,  if  he  is  still  to  sustain  that  sacred  re- 
lation it  becomes  him  to  be  careful  in  the  exercise 


SCHOOL    OFFICERS    AND    TEACHERS.  115 

of  his  authority,  and  not  make  his  power  a  pretext 
for  cruelty  and  oppression.  (14  Johns.  R.  119.) 
Whenever  he  undertakes  to  exercise  it,  the  cause 
must  be  sufficient,  the  instrument  suitable  to  the 
purpose ;  the  manner  and  extent  of  the  correction, 
the  part  of  the  person  to  which  it  is  applied,  the 
temper  in  which  it  is  inflicted,  all  should  be  distin- 
guished with  the  kindness,  prudence,  and  propriety 
which  become  the  station." 

Indiana,  1853.—  Gardner  v.  State,  4  Ind.  633. 

In  another  school  in  Indiana  a  boy  named  Stew- 
ard missed  in  spelling  the  word  "commerce,"  and 
refused  to  try  the  word  again.  The  teacher,  named 
Gardner,  became  angry  and  commenced  beating 
him.  He  wore  out  two  whips  on  him,  and  in  the 
progress  of  the  chastisement  gave  a  blow  or  two 
with  his  fist  on  the  head,  and  a  couple  of  kicks 
in  the  face.  The  following  is  an  extract  from  the 
opinion  of  the  Supreme  Court  sustaining  a  convic- 
tion of  Gardner  for  assault  and  battery  : 

"...  In  a  recent  case  we  had  occasion  to  examine 
the  law  relative  to  the  right  of  teachers  to  chastise 
their  pupils,  Cooper  v.  McJunkin,  ante,  p.  113  (case 
last  cited). 

We  adhere  to  the  doctrine  there  laid  down. 
Such  outrages  on  the  child,  even  though  he  be  tru- 
ant and  perhaps  stubborn,  are  more  than  parental 
feeling  can  bear.    To  prevent  retaliation  and  breach- 


116  POWER    AND    AUTHORITY    OF 

es  of  the  peace,  it  becomes  a  matter  of  public  policy 
to  punish  the  offender.  If  the  law  in  such  cases  is 
properly  administered,  those  whose  feelings  are  out- 
raged will  have  no  apology  for  taking  redress  into 
their  own  hands;  they  will  peaceably  abide  the  ad- 
judication of  the  courts.  If,  on  the  contrary,  the 
law  is  loosely  and  indulgently  administered,  the 
tendency  is  to  stimulate  the  aggrieved  to  seek  per- 
sonal redress.  As  a  matter  of  public  policy,  courts 
and  juries  should,  therefore,  hold  a  strong  and  stern 
hand  over  teachers  who  abuse  their  sacred  and  re- 
sponsible position." 

Massachusetts,  1855. — Com.  v.  Randall,  4  Gray,  36. 

Alonzo  D.  Randall,  teacher  of  a  school  in  Palmer, 
Mass.,  punished  a  girl  with  a  ferule  for  being  obsti- 
nate, telling  falsehoods,  and  for  using  insolent  lan- 
guage before  and  during  the  punishment.  The 
teacher  ceased  punishing  when  the  girl  acknowl- 
edged her  fault,  asked  to  be  forgiven,  and  promised 
better  behavior.  The  teacher  was  tried  for  an  as- 
sault and  battery  and  found  guilty  in  the  lower 
court.  In  that  court  he  asked  the  judge  to  instruct 
the  jury  as  follows:  "That  a  school  teacher  is  ame- 
nable to  the  laws  in  a  criminal  prosecution  for  pun- 
ishing a  scholar  only  when  he  acts  malo  animo, 
from  vindictive  feelings,  or  under  the  violent  im- 
pulses of  passion  or  malevolence ;  he  is  not  liable  for 
errors  of  opinion  or  mistakes  of  judgment  merely, 


SCHOOL    OFFICERS    AND    TEACHERS.  117 

provided  he  is  governed  by  an  honest  purpose  of 
heart  to  promote,  by  the  discipline  employed,  the 
highest  welfare  of  the  school  and  the  best  interest 
of  the  scholar;  that  he  is  liable  in  a  criminal  prose- 
cution for  punishing  a  scholar  only  when  the  amount 
of  punishment  inflicted  is  more  than  adequate  to 
subdue  the  scholar  and  secure  obedience  to  the  rules 
of  the  school." 

The  judge  refused  to  instruct  the  jury  as  above 
requested,  but  instructed  them  as  follows :  "  That  a 
teacher  had  a  right  to  inflict  corporal  punishment 
upon  a  scholar;  that  the  case  proved  was  one  in 
which  such  punishment  might  properly  be  inflicted ; 
that  the  instrument  used  (a  ferule)  was  a  proper 
one ;  that  in  inflicting  corporal  punishment  a  teach- 
er must  exercise  reasonable  judgment  and  discretion, 
and  must  be  governed,  as  to  the  mode  and  severity 
of  the  punishment,  by  the  nature  of  the  offence,  by 
the  age,  size,  and  apparent  powers  of  endurance  of 
the  pupil ;  that  the  only  question  in  this  case  was 
whether  the  punishment  was  excessive  and  im- 
proper ;  that  if  they  should  find  the  punishment  to 
have  been  reasonable  and  proper  the  defendant 
could  not  be  deemed  guilty  of  an  assault  and  bat- 
tery ;  but  if,  upon  all  the  evidence  in  the  case,  they 
should  find  the  punishment  to  have  been  improper 
and  excessive,  the  defendant  might  properly  be 
found  guilty  upon  this  complaint." 

The  teacher  was  dissatisfied  with  this  ruling,  and 


118  POWER    AND    AUTHORITY    OF 

carried  the  case  to  the  Supreme  Court,  where  the 
ruling  was  sustained. 

From  opinion :  "  The  instructions  given  tended 
to  justify  the  defendant  in  punishing  his  pupils  with 
greater  severity  than  is  consistent  with  a  just  and 
humane  exercise  of  the  authority  conferred  on  him 
by  law.  To  say  the  least,  they  were  sufficiently  fa- 
vorable to  the  defendant.  If,  in  inflicting  punish- 
ment upon  his  pupil,  he  went  beyond  the  limit  of 
moderate  castigation,  and,  either  in  the  mode  or  de- 
gree of  correction,  was  guilty  of  any  unreasonable 
and  disproportionate  violence  or  force,  he  was  clear- 
ly liable  for  such  excess  in  a  criminal  prosecution. 
(I  Hawk.  c.  60,  §  23;  1  Russell  on  Crimes  [7th 
Amer.  ed.],  755  ;  Bac.  Ab.  Assault  and  Battery,  C.) 
It  is  undoubtedly  true  that,  in  order  to  support  an 
indictment  for  an  assault  and  battery,  it  is  necessary 
to  show  that  it  was  committed  ex  intentione,  and 
that  if  the  criminal  intent  is  wanting  the  offence  is 
not  made  out.  But  this  intent  is  always  inferred 
from  the  unlawful  act.  The  unreasonable  and  ex- 
cessive use  of  force  on  the  person  of  another  being 
proved,  the  wrongful  intent  is  a  necessary  and  legit- 
imate conclusion  in  all  cases  where  the  act  was  de- 
signedly committed.  It  then  becomes  an  assault  and 
battery,  because  purposely  inflicted  without  justifi- 
cation or  excuse.  Whether,  under  all  the  facts,  the 
punishment  of  the  pupil  is  excessive  must  be  left  to 
the  jury." 


SCHOOL    OFFICERS    AND    TEACHERS.  119 

Tennessee,  1859. — Anderson  v.  State,  3  Head's  R.  455. 

While  the  teacher  in  a  Tennessee  school  was  hear- 
ing a  class,  one  of  the  scholars,  a  small  hoy  named 
Layne,  spoke  out  and  said,  "Four  and  one  make 
five,"  in  a  low  tone  of  voice.  The  teacher  inquired, 
"  Who  spoke  out  ?"  Layne  answered  that  he  did. 
The  teacher  called  him  up,  and  told  him  to  stand 
until  the  class  was  through.  The  teacher  asked  him 
what  he  spoke  out  for.  He  said  he  spoke  before 
he  thought,  and  commenced  crying,  and  said  he 
would  do  so  no  more.  The  teacher  then  told  him 
to  pull  off  his  coat ;  that  no  excuse  would  do.  He 
pulled  off  his  coat.  He  then  hit  him  about  a  dozen 
licks  with  a  switch  about  as  large  as  his  thumb  or 
finger,  and  two  or  three  feet  long.  The  little  boy 
never  had  attended  the  school  until  the  day  before. 
The  teacher  was  found  guilty  of  assault  and  battery, 
and  the  conviction  was  sustained  by  the  Supreme 
Court. 

From  opinion :  "  Upon  these  facts  the  defendant 
was  clearly  guilty  of  an  illegal  act.  There  was  no 
sufficient  cause  for  the  whipping.  The  offence  was 
very  slight,  and  entirely  unintentional.  It  was  the 
first  violation  of  the  rules  on  the  part  of  the  little 
boy ;  he  was  a  new  scholar,  that  being  his  second 
day  in  the  school,  and  his  apology,  repentance,  and 
promise  to  'do  so  no  more'  ought  to  have  saved 
him  from  the  lash.     The  chastisement,  under  these 


120  POWER    AND    AUTHORITY    OF 

circumstances,  was  not  only  cruel,  but  an  unauthor- 
ized exercise  of  power.  Cases  like  this  are  calcu- 
lated to  produce  the  deeds  of  violence  against  teach- 
ers which  so  often  occur  on  the  part  of  the  parents 
and  brothers  of  students. 

"  The  law  has  very  properly  guarded  the  rights 
of  both  parties,  where  this  and  similar  relations  ex- 
ist. The  authority  given  to  the  teacher  must  not 
be  abused,  but  exercised  with  discretion  and  moder- 
ation. He  must  necessarily  have  the  power  to  en- 
force obedience  to  his  rules,  and  even  to  use  the  rod 
when  necessary,  but  not  wantonly  and  without  cause. 
Nor  must  his  chastisement  be  cruel  or  excessive,  but 
reasonably  proportioned  to  the  offence,  and  in  the 
bounds  of  moderation.  It  is  of  the  first  importance 
that  the  authority  of  the  schoolmaster  should  be 
firmly  maintained,  but  still  it  must  be  kept  within 
proper  limits.  The  scholar  being  helpless,  and  in 
the  power  of  his  teacher,  that  power  should  be  re- 
strained, and  not  allowed  to  be  wantonly  abused 
with  impunity.  Where  this  is  done  the  courts 
must  afford  the  proper  redress,  and  prevent  the 
temptation  from  being  presented  to  parents  and  re- 
lations to  take  vengeance  into  their  own  hands. 
The  government  of  a  school  should  be  patriarchal 
rather  than  despotic.  If  it  be  a  monarchy,  it  should 
be  a  limited  one,  and  not  absolute." 


SCHOOL    OFFICERS    AND    TEACHERS.  121 

Vermont,  1859. — Lander  v.  Scaver,  32  Vt.  114. 

In  the  Vermont  case  of  Lander  v.  Seaver,  where  a 
boy  was  punished  for  calling  his  teacher  names  out 
of  school  (see  page  96),  the  court,  in  relation  to 
corporal  punishment,  approved  the  law  as  expressed 
in  the  case  of  Hathaxvay  v.  Rice,  19  Vt.  102  (see 
page  109),  and  in  4  Gray,  36  (see  page  116). 

From  opinion  :  "...  The  law,  as  we  deem  it  to 
exist,  is  this  :  A  schoolmaster  has  the  right  to  inflict 
reasonable  corporal  punishment.  He  must  exercise 
reasonable  judgment  and  discretion  in  determining 
when  to  punish,  and  to  what  extent.  In  deter- 
mining upon  what  is  a  reasonable  punishment  va- 
rious considerations  must  be  regarded  —  the  nat- 
ure of  the  offence,  the  apparent  motive  and 
disposition  of  the  offender,  the  influence  of  his 
example  and  conduct  upon  others,  and  the  sex, 
age,  size,  and  strength  of  pupil  to  be  punished. 
Among  reasonable  persons  much  difference  prevails 
as  to  the  circumstances  which  will  justify  the  in- 
fliction of  punishment,  and  the  extent  to  which 
it  may  properly  be  administered.  On  account  of 
this  difference  of  opinion,  and  the  difficulty  which 
exists  in  determining  what  is  a  reasonable  punish- 
ment, and  the  advantage  which  the  master  has  by 
being  on  the  spot  to  know  all  the  circumstances 
— the  manner,  looks,  tones,  gestures,  and  language 
of  the  offender  (which  are  not  always  easily  described) 


122  POWER    AND    AUTHORITY    OF 

— and  thus  to  form  a  correct  opinion  as  to  the  neces- 
sity and  extent  of  the  punishment,  considerable  allow- 
ance should  be  made  to  the  teacher  by  way  of  protect- 
ing him  in  the  exercise  of  his  discretion.  Especially 
should  he  have  this  indulgence  when  he  appears  to 
have  acted  from  good  motives  and  not  from  anger  or 
malice.  Hence  the  teacher  is  not  to  be  held  liable 
on  the  ground  of  excess  of  punishment  unless  the 
punishment  is  clearly  excessive,  and  would  be  so  held 
in  the  general  judgment  of  reasonable  men.  If  the 
punishment  be  thus  clearly  excessive,  then  the  mas- 
ter should  be  held  liable  for  such  excess,  though  he 
acted  from  good  motives  in  inflicting  the  punish- 
ment, and  in  his  own  judgment  considered  it  neces- 
sary and  not  excessive.  But  if  there  is  any  rea- 
sonable doubt  whether  the  punishment  was  exces- 
sive, the  master  should  have  the  benefit  of  the 
doubt." 

Iowa,  1878.— State  v.  Mizner,  50  Iowa,  152. 

In  the  Iowa  case  hereinbefore  cited,  page  50  (50 
Iowa,  152),  where  a  scholar  was  punished  for  not  re- 
citing in  algebra,  the  court  expressed  an  opinion  upon 
the  subject  of  corporal  punishment.  In  the  lower 
court  the  jury  received  the  following  instruction  : 
"  In  the  absence  of  all  proof  the  law  presumes  that 
a  father  or  school  -  teacher  punishes  a  child  of 
the  father  or  the  pupil  of  the  teacher  for  a  reason- 
able cause  and  in  a  moderate  and  reasonable  man- 


SCHOOL    OFFICERS    AND    TEACHERS.  123 

ner.  But  this  presumption,  like  all  other  legal  pre- 
sumptions, may  be  rebutted  by  the  proof."  This 
instruction  was  sustained  by  the  Supreme  Court. 

From  opinion  :  "  It  is  urged  this  instruction  is 
erroneous,  for  the  reason  that  the  teacher  is  not  liable 
because  of  the  punishment  inflicted,  but  only  in  the 
event  that  it  was  excessive,  and  the  evidence  fails 
to  show  such  was  the  case. 

"  Forty  years  ago  it  was  held,  that  '  when  the 
correction  administered  is  not  in  itself  immoderate, 
and  therefore  beyond  the  authority  of  the  teacher, 
its  legality  or  illegality  must  depend  entirely,  we 
think,  on  the  quo  animo  with  which  it  is  adminis- 
tered. Within  the  sphere  of  his  authority  the  mas- 
ter is  the  judge  when  correction  is  required,  and  of 
the  degree  of  correction ;  and,  like  all  others  in- 
trusted with  a  discretion,  he  cannot  be  made  penally 
responsible  for  error  of  judgment,  but  only  for  wick- 
edness of  purpose.'  {State  v.  Pendergrass,  2  Dev. 
&  Batt.  355.) 

"Twenty  years  later  an  instruction  was  refused 
which  announced  the  rule  that  a  teacher  was  not 
amenable  criminally  unless  he  inflicted  the  punish- 
ment with  a  bad  intent,  from  vindictive  feelings,  and 
an  instruction  given  which  recognized  the  right  to 
chastise  a  scholar  by  whipping,  and  the  proof  was 
sufficient  to  justify  the  instrument  used  as  being  a 
proper  one,  but  that  in  '  inflicting  corporal  punish- 
ment the  teacher  must  exercise  reasonable  judgment 


124  POWER    AND    AUTHORITY    OF 

and  discretion  as  to  the  mode  and  severity  of  the 
punishment  hy  the  nature  of  the  offence,  and  hy  the 
age,  size,  and  apparent  power  of  endurance  of  the 
pupil.' 

"  As  to  this  instruction  it  was  said  :  '  The  instruc- 
tions given  tended  to  justify  the  defendant  in  pun- 
ishing his  pupils  with  greater  severity  than  is  con- 
sistent with  a  just  and  humane  exercise  of  the 
authority  conferred  on  him  by  law.  To  say  the 
least,  they  were  sufficiently  favorable  to  the  defend- 
ant.'    (Commonwealth' v.  Randall,  4  Gray,  36.) 

"  We  concur  with  the  Supreme  Court  of  Massa- 
chusetts in  the  case  last  cited,  and  further  than  this 
we  have  no  occasion  to  go  in  the  present  case.  But 
if  the  rule  of  the  first  case  cited  is  the  correct  one, 
then  we  have  no  hesitation  in  saying  there  was  no 
error  in  the  instruction  of  the  court,  because  the 
punishment  was  immoderate  and  excessive,  if  the 
testimony  of  the  witnesses  for  the  state  is  true,  and 
this  was  a  question  for  the  jury.  Any  punishment 
with  a  rod  which  leaves  marks  or  welts  on  the  per- 
son of  the  pupil  for  two  months  afterward,  or  much 
less  time,  is  immoderate  and  excessive,  and  the 
court  would  have  been  justified  in  so  instructing  the 
jury." 

Indiana,  1879.— Dannenhoffer  v.  State,  69  Ind.  295. 

A  Catholic  priest,  having  charge  of  a  Catholic 
school  in  Indiana,  punished  a  boy  under  the  follow- 


SCHOOL    OFFICERS    AND    TEACHERS.  125 

ing  circumstances:  He,  with  others,  attended  the 
funeral  of  a  Protestant  boy  as  pall-bearers.  When 
they  went  to  school  the  next  day  they  were  required 
by  the  lady  teacher  in  charge,  subordinate  to  the 
priest,  to  give  an  excuse  for  their  absence  from 
school,  but  they  refused  to  give  any.  She  then  gave 
the  boys  a  note  directed  to  the  priest,  but  they  ran 
home  and  did  not  deliver  the  note.  The  next  day 
the  priest  whipped  them  for  their  disobedience  of 
the  order  of  the  teacher  in  not  delivering  the  note. 
The  priest  was  sustained  by  the  Supreme  Court, 
and  the  case  of  Cooper  v.  McJunkin,  4  Ind.  291,  was 
cited  and  approved.* 

*  Dannenhoffer  was  again  indicted  for  whipping  another 
boy  under  the  same  circumstances,  and  in  the  court  below 
was  found  guilty  and  sentenced  to  pay  a  fine  of  five  dollars. 
The  case  came  before  the  Supreme  Court  in  1881.  (Dannen- 
hoffer v.  State,  79  Ind.  75.)  On  the  trial  below  the  defendant 
was  asked  this  question  by  his  counsel:  "State  whether  or 
not  that  Tekulve  (the  person  on  whom  the  battery  was 
charged  to  have  been  committed)  attended  the  funeral  of 
Clark  had  anything  to  do  with  the  punishment  administered 
on  that  occasion,  or  if  it  was  any  part  of  the  cause." 

The  counsel  for  the  state  objected  to  this  question,  and  the 
trial  judge  ruled  it  out. 

The  Supreme  Court  decided  that  the  question  was  a  proper 
one,  and  granted  a  new  trial,  saying:  "It  was  important  to 
know  whether  the  defendant  punished  the  boy  for  going  to 
the  funeral,  or  for  other  disobedience  and  insubordination." 


126  POWER    AND    AUTHORITY    OF 

Pennsylvania. — Com.  v.  Seed,  5  Penn.  L.  J.  Pv  78  (reported 
1851). 

This  case  arose  in  one  of  the  courts  of  Phila- 
delphia. A  child  had  played  truant.  She  was 
sent  by  her  parent  with  an  elder  sister  to  school. 
When  the  door  was  reached  she  refused  to  go  in, 
showing  great  violence  of  temper.  An  assistant 
teacher  endeavored  to  persuade  her  to  enter,  but 
without  effect.  The  principal  then  appeared  and 
took  her  into  the  room,  where  the  violence  continued, 
manifested  by  jumping  and  screaming.  The  teacher 
talked  mildly  to  the  child,  and  ordered  obedience, 
and  finally  threatened  a  whipping,  but  all  to  no  pur- 
pose. She  then  whipped  her  with  a  small  rattan. 
After  a  few  blows  she  reasoned  with  the  child,  but 
the  child  continuing  to  be  obstinate  the  whipping 
was  continued  until  the  child  yielded.  The  teacher 
was  complained  of  for  assault  and  battery. 

From  judge's  opinion  :  "  What  is  there  in  all 
this  which  shows  malice  or  cruelty  on  the  part 
of  the  teacher?  What  is  there  in  the  language 
of  the  law  which  shows  a  'wicked  motive'  ?  I  can 
see  nothing.  The  teacher  required  obedience  to 
the  rules  of  the  school  and  it  was  refused.  That 
punishment  is  used  which  she  thinks  is  best  cal- 
culated to  produce  submission,  and  in  the  man- 
ner and  form  common  in  all  schools.  This  au- 
thority the  law  has  delegated  to  her,  and  for  the 
exercise  of  it,  although  Ave  might  differ  in  opinion 


SCHOOL    OFFICERS    AND    TEACHERS.  127 

as  to  the  manner  in  which  it  was  done,  at  least  the 
court  will  not  punish  for  or  correct  an  error  of  judg- 
ment. But  from  the  facts  disclosed  I  do  not  think 
there  was  even  an  error  in  that  particular.  She 
entered  upon  the  performance  of  her  duty  with 
moderation  and  firmness  as  well  as  a  determination 
to  produce  submission,  which  she  pursued  till  it  was 
accomplished,  by  the  best  means  which  her  judgment 
dictated.  In  this  we  think  she  was  right.  Had  she 
done  less,  the  directors  of  the  school  might  with 
propriety  have  thought  she  was  culpable ;  and  for 
these  things  the  law  does  not  hold  her  responsible. 

"  But  it  has  been  said  there  were  marks  of  violence 
on  the  child  the  next  day,  caused  by  blows  from  the 
rattan.  But  this  is  but  a  slight  circumstance  to 
show  the  motive.  It  is  much  greater  evidence  of 
the  obstinacy  and  perseverance  of  the  child.  The 
instrument  employed  was  a  small,  smooth  rattan, 
certainly  a  moderation  in  the  instrument  used,  in 
these  days  of  improvement  in  education,  and  in 
most  that  is  useful,  or  which  adds  to  the  comfort  of 
man.  For  many  of  us  can  well  recollect  when  the 
birch  or  hickory  stick,  with  some  rather  sharp  knots 
thereon,  was  the  instrument  for  flagellation,  and 
our  parents  did  not  complain. 

"To  hold  that  under  such  circumstances  a  teacher 
should  be  liable  to  a  criminal  prosecution  would  be 
subversive  of  all  government  and  order  in  our  schools. 
Without  a  firm  controlling  power  is  exercised  by 


128  POWER    AND    AUTHORITY    OF 

school-teachers,  in  exacting  obedience,  submission, 
united  with  quiet  and  good  order  in  the  schools,  the 
public  money  is  worse  than  wasted.  Obedience  to 
parental  authority  should  be  taught  in  the  fami- 
ly, and  must  be  maintained  in  our  schools,  or  we 
shall  have  no  obedience  in  the  laws  of  our  govern- 
ment. .  .  . 

"  The  character  and  interest  of  the  teacher,  com- 
bined with  the  refinement  which  education  gives 
to  the  human  mind,  in  softening  the  heart,  like  pa- 
rental love,  is  generally  found  a  sufficient  protec- 
tion for  the  children.  But,  if  these  fail,  the  law  af- 
fords ample  protection  against  cruelty  and  oppression, 
while  it  is  a  shield  to  those  who,  in  their  sphere, 
have,  as  in  this  case,  only  done  their  duty." 

For  cases  where  the  court  held  that  punishing 
a  pupil  for  refusing  to  study  certain  branches  was 
unjustifiable,  see  p.  34  (35  Wis.  59)  and  pp.  50, 122 
(50  Iowa,  152). 

The  following  is  the  law  of  New  Jersey : 

"No  teacher  shall  be  permitted  to  inflict  corporal 
punishment  upon  any  child  in  any  school  in  this 
state."     (Rev.  Stat.  1877,  p.  1087.) 

The  following  extract  is  from  the  New  York 
Penal  Code :  "  The  use,  or  attempt,  or  offer  to  use 
force  or  violence  upon  or  towards  the  person  of  an- 
other is  not  unlawful  in  the  following  cases,  .  .  . 
when  committed  by  a  parent  or  the  authorized  agent 


SCHOOL    OFFICERS    AND    TEACHERS.  129 

of  any  parent,  or  by  any  guardian,  master,  or  teacher, 
in  the  exercise  of  a  lawful  authority  to  restrain  or 
correct  his  child,  ward,  apprentice,  or  scholar,  and 
the  force  or  violence  used  is  reasonable  in  manner 
and  moderate  in  degree."  (Rev.  Stat.  vol.  4,  Penal 
Code,  c.  5,  §  223.) 

Note. — An  examination  of  the  decisions  shows  that 
the  courts,  with  entire  unanimity,  affirm  the  right  of 
teachers  to  administer  bodily  punishment  to  compel 
obedience  to  their  lawful  commands;  but  that  upon 
the  measure  or  degree  of  the  punishment  and  the  lia- 
bility of  the  teacher  for  abuse  of  the  right  the  courts 
differ. 

The  decisions  may  be  arranged  in  two  classes,  re- 
spectively represented  by  State  v.  Pcndergrass,  2  Dev. 
&  Batt,  365  (N.  C.  1837)  [p.  105] ;  and  Com.  v.  Randall, 
4  Gray,  36  (Mass.  1855)  [p.  116].  The  first-named  case 
decides  that  the  teacher  acts  judicially  in  determining 
the  necessity  and  extent  of  punishment,  and  is  not  lia- 
ble unless  he  produces  lasting  injury  to  body  or  health, 
or  punishes  with  malice,  bad  passion,  or  wickedness 
of  purpose.  The  second  case  is  to  the  effect  that  the 
teacher  must  exercise  reasonable  judgment,  and  if 
he  goes  beyond  the  limit  of  moderate  castigation  and 
uses  any  unreasonable  and  disproportionate  violence 
or  force,  either  in  mode  or  degree  of  correction,  he  is 
liable  in  a  criminal  prosecution. 

The  rule  established  by  the  first  case  is  supported  by 
Com.  v.  Seed,  5  Pa.  L.  J.  78  (p.  126),  and  is  cited  and  ap- 
proved in  four  subsequent  cases  in  North  Carolina — ■ 
State  v.  Staleup,  2  Ired.  50 ;  State  v.  Black,  Winst.  266 ; 
9 


130  POWER    AND    AUTHORITY    OF 

State  v.  Modes,  Phil.  453 ;  and  State  v.  Alford,  08  N.  C. 
322  (1873),  in  which  Judge  Gaston,  by  whom  the  opin- 
ion was  given  in  the  Pendergrass  case,  is  spoken  of 
as  "humane  a  judge  as  ever  presided  in  a  court" 

The  rule  laid  down  in  the  Massachusetts  case,  though 
in  substance  first  announced  by  the  Supreme  Court  of 
Indiana  in  Cooper  v.  McJunkin,  4  Ind.  291  (1853),  is 
supported  by  Gardner  v.  State,  4  Ind.  G33  (p.  115); 
Anderson  v.  State,  3  Head.  455  (Tenn.  1859)  [p.  119] ; 
Lander  v.  Seaver,  32  Vt.  114  (p.  96);  State  v.  Mizner, 
50  Iowa,  152  (p.  50);  Dannenhoffer  v.  State,  G9  Ind.  295 
(p.  124). 

It  is  to  be  presumed,  in  the  absence  of  evidence  to 
the  contrary,  that  the  teacher  punishes  in  the  exercise 
of  an  honest  judgment,  and  not  maliciously;  and  that 
the  punishment  is  not  excessive.  {Anderson  v.  State,  3 
Head.  455,  Tenn.;  Lander  v.  Seaver,  32  Vt.  114;  State 
v.  Mizner,  50  Iowa,  152.) 

RULES  NEED  NOT  BE  RECORDED  ;  AND  RULES  MADE 
BY  TEACHER  OR  PART  OF  BOARD,  SUBSEQUENTLY 
RATIFIED  BY  FULL  BOARD,  ARE  BINDING. 

Above  points  decided  in  Hodgkins  v.  Rockport, 
105  Mass.  475,  ante,  p.  76.  The  court  said,  "  Much 
of  the  power  of  the  committee,  as  to  the  preser- 
vation of  order  and  the  maintenance  of  discipline, 
must  necessarily  be  delegated  to  its  different  mem- 
bers and  the  teachers,  and  must  be  exercised  without 
any  vote  or  record." 

And  in  Russell  v.  Lynnfield,  116  Mass.  366,  ante, 
p.  9,  the  above  case  was  cited,  and  the  court  said : 


SCHOOL    OFFICERS    AND    TEACHERS.  131 

"  The  exclusion  which  the  plaintiff  complains  of  in 
this  case  was  by  the  school-teacher,  acting  under  the 
direction  of  one  member  of  the  school  committee. 
It  is  contended  to  have  been  unlawful  solely  because 
the  rule  in  question  had  not  been  formally  estab- 
lished or  confirmed  by  vote  of  the  school  committee, 
duly  entered  upon  their  records.  The  school  com- 
mittee are  required  to  have  the  general  charge  and 
superintendence  of  all  the  public  schools  in  town, 
and  to  keep  a  record  of  their  votes,  orders,  and  pro- 
ceedings. (Gen.  Stat,  c.  38,  §  1 0,  22.)  But  this  does 
not  imply  that  all  rules  and  orders  required  for  the 
discipline  and  good  conduct  of  the  schools  shall  be 
matter  of  record  with  the  committee,  or  that  every 
act  in  regard  to  the  management  of  each  school  in 
these  respects  should  be  authorized  or  confirmed  by 
formal  vote.  It  would  be  practically  impossible  suf- 
ficiently to  provide  for  such  matters  by  a  system  of 
rules,  however  carefully  prepared  and  promulgated. 
Much  must  necessarily  be  left  to  the  individual  mem- 
bers of  the  committee  and  to  the  teachers  of  the 
several  schools." 

In  State  v.  Burton,  45  Wis.  150,  ante,  p.  78,  the 
court  said : 

"...  In  the  school,  as  in  the  family,  there  exist 
on  the  part  of  the  pupil  the  obligations  of  obedi- 
ence to  lawful  commands,  subordination,  civil  deport- 
ment, respect  for  the  rights  of  other  pupils,  and 
fidelity  to  duty.     These  obligations  are  inherent,  in 


132  POWER    AND    AUTHORITY    OF 

any  proper  school  system,  and  constitute,  so  to  speak, 
the  common  law  of  the  school.  Every  pupil  is  pre- 
sumed to  know  this  law,  and  is  subject  to  it,  whether 
it  has  or  has  not  been  re-enacted  by  the  district 
board  in  the  form  of  written  rules  and  regulations. 
Indeed,  it  would  seem  impossible  to  frame  rules 
which  would  cover  all  cases  of  insubordination  and 
all  acts  of  vicious  tendency  which  the  teacher  is  lia- 
ble to  encounter  daily  and  hourly." 

The  above  expression  of  the  Wisconsin  court  was 
quoted  and  approved  by  the  Supreme  Court  of  In- 
diana in  69  Ind.  295,  ante,  p.  124. 

See  Kidder  v.  Chellis,  p.  52,  for  case  where  teach- 
er was  sustained  in  enforcing  a  rule  made  by  him 
in  relation  to  declamations,  and  not  ratified  by  the 
school  committee. 

Note. — In  California  :  "  All  pupils  must  comply  with 
the  regulations,  pursue  the  required  course  of  study, 
and  submit  to  the  authority  of  the  teachers  of  such 
schools." 

In  Kentucky :  "  All  pupils  who  may  be  admitted  to 
common  schools  shall  comply  with  the  regulations 
established  in  pursuance  of  law  for  the  government  of 
such  schools." 

The  law  of  Missouri  provides  "  rules  to  take  effect 
when  a  copy  of  the  same,  duly  signed  by  a  majority 
of  the  board,  is  deposited  with  the  district  clerk, 
whose  duty  it  shall  be  to  transmit  forthwith  a  copy 
of  the  same  to  the  teachers  employed  in  the  schools." 

In  New  Jersey:  "The  pupils  of  the  public  schools 


SCHOOL    OFFICERS    AND    TEACHERS.  133 

shall  comply  with  the  regulations  established  in  pur- 
suance of  law  for  the  government  of  such  schools, 
.  .  .  and  shall  submit  to  the  authority  of  the  teach- 
er."   (See  p.  104.) 

In  New  Hampshire :  Rules  "  being  recorded  by  the 
town  clerk  and  a  copy  thereof  given  to  the  teachers, 
and  read  in  the  schools,  shall  be  binding  upon  scholars 
and  teachers.'1    (See  p.  151.) 

The  law  of  Rhode  Island  provides  that  the  rules 
and  regulations  shall  be  put  up  in  each  schoobhouse. 
(See  p.  154.) 

In  Wisconsin:  Rules  shall  take  effect  "when  a  copy 
of  the  same,  signed  by  a  majority  of  the  board,  shall  be 
filed  with  the  clerk."    (See  p.  158.) 

PERSONS  OVER  SCHOOL  AGE,  OR  OVER  TWENTY- 
ONE  YEARS  OF  AGE,  WHO  ATTEND  SCHOOL  ARE 
SUBJECT    TO    ALL    RULES    OF    THE    SCHOOL. 

This  point  was  decided  in  Stevens  v.  Fassett,  Jr., 
27  Me.  266,  ante,  p.  110. 

From  opinion  :  "  It  is  not  necessary  to  settle  the 
question  whether  one  living  within  the  district,  and 
not  being  between  the  ages  of  four  and  twenty-one 
years,  can  with  propriety  require  the  instructions  of 
town  school.  If  such  does  present  himself  as  a 
pupil,  is  received  and  instructed  by  the  master,  he 
cannot  claim  the  privilege,  and  receive  it,  and  at 
the  same  time  be  subject  to  none  of  the  duties 
incident  to  a  scholar.  If  disobedient,  he  is  not 
exempt  from   liability   to   punishment   so  long  as 


134  POWER    AND    AUTHORITY    OF 

he  is  treated  as  having  the  character  which  lie  as- 
sumes. He  cannot  plead  his  own  voluntary  act, 
and  insist  that  it  is  illegal,  as  an  excuse  for  cre- 
ating disturbances,  and  escape  consequences  which 
would  attach  to  him  cither  as  a  refractory,  incorri- 
gible scholar,  or  as  one  who  persists  in  interrupting 
the  ordinary  business  of  the  school." 

The  above  opinion  is  cited  and  approved  in  State 
v.  Mizncr,  45  Iowa,  248. 

SCHOOL  OFFICERS  ACTING  HONESTLY  AND  IN  GOOD 
FAITH  ARE  NOT  PERSONALLY  LIABLE  TO  PUPILS 
OR  PARENTS. 

The  above  proposition  is  sustained  by  the  weight 
of  authority.  A  late  decision  (1880)  is  that  of  the 
Supreme  Court  of  Illinois:  School  directors  made  a 
rule  that  the  teacher  might  read,  as  an  opening  ex- 
ercise every  morning,  not  occupying  more  than  fif- 
teen minutes,  a  chapter  from  the  King  James'  trans- 
lation of  the  Bible.  No  one  was  required  to  be 
present  or  participate  in  such  exercise  unless  he 
chose  to  do  so,  and  while  such  exercise  was  being 
conducted  every  pupil  was  required  to  lay  aside  his 
books  and  remain  quiet.  A  Catholic  boy,  for  not 
laying  aside  his  books,  was  suspended  from  "all  the 
rights  and  privileges  of  said  school  until  he  should 
express  a  willingness  to  comply  with  the  rule."  By 
the  school  law  of  the  state  it  was  the  duty  of  the 
directors  to  "  adopt  and  enforce  all  necessary  rules 


SCHOOL    OFFICERS    AND    TEACHERS.  135 

and  regulations  for  the  management  and  govern- 
ment of  schools,"  and  also  authorized  to  "suspend 
or  expel  pupils  for  incorrigibly  bad  conduct,  and  no 
action  shall  lie  against  them  for  such  expulsion  or 
suspension." 

Though  by  the  statute  the  officers  were  saved 
from  suit  in  cases  of  suspension,  etc.,  the  decision 
did  not  turn  upon  this  provision,  but  was  based 
on  the  general  rule  of  non-liability. 

From  opinion:  "In  the  performance  of  the  du- 
ties imposed  by  law  upon  school  directors  they  must 
exercise  judgment  and  discretion.  What  rules  and 
regulations  will  best  promote  the  interests  of  the 
school  under  their  immediate  control,  and  what 
branches  shall  be  taught  and  what  text-books  shall 
be  used,  are  matters  left  to  the  determination  of  the 
directors,  and  must  be  settled  by  them  from  the  best 
lights  they  can  obtain  from  any  source,  keeping  al- 
ways in  view  the  highest  good  of  the  whole  school. 
Good  order  can  only  be  obtained  by  enforcing  dis- 
cipline, and  this  power  is  largely  committed  to  the 
directors.  They  have  the  power  of  suspension  or 
expulsion,  and  they  may  exercise  that  power  as  a 
means  of  discipline  for  the  causes  mentioned  in  the 
statute.  The  expulsion  or  suspension  of  a  pupil 
from  the  benefits  and  privileges  of  the  school  for 
what  is  considered  '  incorrigibly  bad  conduct,'  implies 
deliberation  and  decision  on  the  part  of  the  direc- 
tors, or,  as  it  is  sometimes  expressed,  they  act  judi- 


136  POWER    AND    AUTHORITY    OF 

cially  in  a  matter  involving  discretion  in  relation  to 
the  duties  of  their  office. 

"  The  declaration  in  this  case  contains  no  averment 
that  defendants,  in  suspending  plaintiff  from  the  ben- 
fits  and  privileges  of  the  school,  acted  either  wan- 
tonly or  maliciously.  That,  we  think,  is  a  fatal  de- 
fect in  the  declaration,  and  justified  the  decision  of 
the  court  sustaining  the  demurrer. 

"  The  absence  of  such  an  averment  leaves  the  court 
freely  to  indulge  the  presumption  that  defendants 
acted  in  good  faith  in  the  matter  of  suspending 
plaintiff  from  the  benefits  of  the  school,  whether 
they  erred  in  their  judgment  or  not.  In  such  cases 
the  law  seems  to  be  well  settled  there  can  be  no 
action  maintained  against  school  officers  where  they 
act  without  malice. 

"  The  rule  is  certainly  a  reasonable  one.  A  mere 
mistake  in  judgment,  either  as  to  their  duties  under 
the  law  or  as  to  facts  submitted  to  them,  ought  not 
to  subject  such  officers  to  an  action.  They  may 
judge  wrongly,  and  so  may  a  court  or  other  tribunal, 
but  the  party  complaining  can  have  no  action  when 
such  officers  act  in  good  faith  and  in  the  line  of 
what  they  think  is  honestly  their  duty.  Any  other 
rule  might  work  great  hardship  to  honest  men,  who, 
with  the  best  of  motives,  have  faithfully  endeavored 
to  perform  the  duties  of  these  inferior  offices.  Al- 
though of  the  utmost  importance  to  the  public,  no 
considerable  emoluments  are  attached  to  these  minor 


SCHOOL    OFFICERS    AND    TEACHERS.  137 

offices,  and  the  duties  are  usually  performed  by  per- 
sons sincerely  desiring  to  do  good  for  their  neigh- 
bors without  any  expectation  of  personal  gains,  and 
it  would  be  a  very  harsh  rule  that  would  subject  such 
officers  to  an  action  for  damages  for  every  mistake 
they  may  make  in  the  honest  and  faithful  discharge 
of  their  official  duties  as  they  understand  them.  It 
is  not  enough  to  aver  the  action  of  such  officers  was 
erroneous,  but  it  must  be  averred  and  proved  that 
such  action  was  taken  in  bad  faith,  either  wantonly 
or  maliciously.  If  in  the  discharge  of  their  official 
duties  such  officers  simply  err,  it  is  what  other  tri- 
bunals invested  with  judicial  powers  are  liable  to  do. 

"A  case  not  unlike  the  one  before  us  was  before 
the  court  in  Donahoe  v.  Richards,  38  Me.  389,  and  it 
was  ruled,  in  accordance  with  what  was  thought  to 
be  a  uniform  course  of  decisions,  that  a  public  offi- 
cer, when  acting  in  good  faith,  is  never  held  liable 
for  an  erroneous  judgment  in  a  matter  submitted  to 
his  determination.  Were  the  rule  otherwise,  no  one 
would  be  safe  in  taking  upon  himself  the  burdens 
of  an  office  the  duties  of  which  involved  the  exercise 
of  judgment. 

"In  Jackson  v.  Waldron,  11  Johns.  114,  it  was  held 
that  officers  called  to  exercise  their  deliberate  judg- 
ment are  not  answerable  for  mistakes  in  law,  either 
civilly  or  criminally,  where  their  motives  are  pure 
and  untainted  with  fraud  or  malice.  The  English 
cases  on  this  subject  hold  the  same  doctrine.    Han- 


138  POWER    AND    AUTHORITY    OF 

nan  v.  Tappenden,  1  East.  555,  declares  no  action 
will  lie  against  individuals  for  acts  erroneously  done 
by  them  in  their  corporate  capacity,  from  which 
detriment  may  happen  to  another,  without  proof 
of  malice."     McCormicJc  v.  Burt,  95  111.  263. 

A  later  decision  in  Illinois  affirms  the  above. 
Churchill  v.  Feivkes,  1883  (see  p.  22).  To  same 
point  see  Dritt  v.  Snodgrass,  66  Mo.  286,  citing 
Donahoe  v.  Richards,  38  Me.  391  ;  Spear  v.  Cum- 
viings,  23  Pick.  224 ;  Stephenson  v.  Hall,  14  Barb. 
222.  See  also  Stewart  v.  Southard,  17  Ohio,  402, 
but  see  21  Ohio  St.  R.  666;  Weaver  v.  Devendorf, 
3  Dcnio,  117;  Downer  v.  Lent,  6  Cal.  94;  Mills  v. 
Dean,  32  N.  Y.  489;  Hines  v.  Lochport,  50  N.  Y. 
236;  49  Barb.  455;  49  N.  II.  199;  37  Conn.  365; 
48  Mo.  253;  1  Denio,  599;  3  How.  87. 

There  is  a  wide  difference  of  authority  upon  the 
question  whether  or  not  teachers  are  included  in  the 
class  of  officers  vested  with  judicial  powers,  and  not 
liable  for  errors  of  judgment.  As  this  question  is 
involved  in  the  decisions  in  relation  to  corporal  pun- 
ishment, the  reader  is  referred  to  them  and  the  note 
following,  on  pages  105-130. 

AUTHORITY     OF     TEACHER     IN     CHARGE     OF     SCHOOL, 
WITHOUT  HOLDING  CERTIFICATE   OF  APPOINTMENT. 

The  power  and  authority  of  a  teacher  who  has 
not  a  certificate  of  appointment,  where  such  is  re- 
quired by  statute,  has  been  much  disputed.      The 


SCHOOL    OFFICERS    AND    TEACHERS.  139 

subject  was  thus  treated  by  Horace  Mann,  an  emi- 
nent educational  authority,  10th  Rep.  Mass.  Board 
of  Education  (1847),  p.  109,  170:  "An  important 
question  has  been  agitated,  whether  a  person  ille- 
gally admitted,  or  smuggled  into  a  school  without  a 
certificate,  can  legally  exercise  any  of  the  preroga- 
tives of  a  teacher ;  whether,  for  instance,  if  he  should 
punish  or  chastise  a  refractory  or  vicious  scholar,  so 
much  only  as,  under  other  circumstances,  would  be 
held  justifiable,  he  could  defend  himself  from  fine  or 
damages  in  a  prosecution  or  action  for  assault  and 
battery,  instituted  against  him  in  a  court  of  law.  .  .  . 

"  On  the  one  hand,  it  is  maintained  that  a  teacher 
without  a  certificate  can  no  more  justify  a  punish- 
ment inflicted  by  him  on  a  scholar  than  a  sheriff, 
without  a  commission,  can  justify  an  arrest  of  per- 
son, or  a  seizure  of  chattels ;  nor  more  than  a  con- 
stable or  collector  can  justify  the  taking  of  property 
for  non-payment  of  taxes,  when  he  has  received  no 
warrant  from  the  collector  to  collect  them  ;  no  more 
than  a  judge  who,  without  a  commission  from  the 
executive,  has  usurped  the  bench,  can,  with  impuni- 
ty, pronounce  sentence  of  imprisonment  or  of  death 
against  an  offender  arraigned  at  his  bar.  .  .  . 

"  The  pretended  teacher  is  not  a  teacher.  It  would 
be  of  the  worst  possible  tendency  to  allow  any  man 
to  derive  lawful  authority  from  the  commission  of 
an  unlawful  act.  Public  policy  requires  that  a  teach- 
er who  has  obtruded  himself  into  a  school  without 


140  POWER    AND    AUTHORITY    OF 

the  necessary  credentials  should  be  peremptorily  de- 
barred from  pleading  his  own  misconduct  in  justifi- 
cation of  an  act  which,  if  committed  out  of  school, 
would  doubtless  be  unlawful.  .  .  . 

"  Such  is  the  course  of  argument  usually  presented 
against  a  teacher  without  a  certificate,  in  regard  to 
his  right  to  punish. 

"  On  the  other  hand,  some  incline  to  the  opinion 
that  a  teacher  without  a  certificate,  though  not  in 
law  a  teacher,  yet  is  so  in  fact ;  and,  while  the  ac- 
tual relation  of  teacher  and  pupil  subsists,  all  the 
legal  powers  of  a  teacher  attach  to  this  relation,  and 
may  therefore  be  exercised  by  them.  If  a  school 
kept  by  a  teacher  without  a  certificate  is  not  a  pub- 
lic school,  then  it  must  be  a  private  school ;  and  the 
teacher  of  a  private  school  has  as  clear  a  right  to  in- 
flict punishment,  in  exigencies  as  require  it,  as  any 
other  teacher,  or  as  any  parent." 

The  last  view  of  the  matter  presented  by  Mr. 
Mann  is  sustained  by  such  decisions  as  have  been 
published. 

Vermont,  1855.— Stale  v.  Williams,  27  Vt.  755. 

Peter  Bean  was  a  prudential  committee,  and  Miss 
Emily  Culver  was  a  teacher  in  his  district.  One 
Henry  Williams,  a  boy  sixteen  or  seventeen  years 
old,  refused  to  obey  the  lawful  and  proper  com- 
mands of  the  teacher,  when,  and  in  consequence  of 
such  misconduct,  he  was  expelled  from  school  and 


SCHOOL    OFFICERS    AND    TEACHERS.  141 

forbidden  to  attend  further  uutil  he  would  make 
suitable  and  proper  acknowledgment  of  such  misbe- 
havior. He  again  went  to  the  school,  and,  upon 
being  called  upon  by  the  teacher,  refused  to  make 
acknowledgment  or  leave  the  school,  whereupon  the 
teacher  sent  for  Peter  Bean,  the  committee,  who 
went  to  the  school-house  and  requested  the  said 
Henry  to  make  acknowledgment  to  the  teacher  or 
leave  the  school,  which  he  refused  to  do.  Bean 
then  attempted  to  remove  him,  when  the  defendant, 
Spencer  Williams,  interfered  and  resisted. 

The  defendant  was  found  guilty,  and  the  question 
was  raised  that  the  existence  of  the  school  district 
and  the  office  of  Bean  had  not  been  shown.  It  was 
decided  not  necessary. 

From  opinion :  "  But  if  we  were  to  assume  that 
there  was  no  such  school  district,  and  that  no  evidence 
was  introduced  showing  that  Mr.  Bean  was  one  of  the 
prudential  committee,  we  do  not  see  that  it  would 
necessarily  affect  this  prosecution.  The  fact  that 
there  was  a  school,  that  Miss  Culver  was  its  teacher, 
that  one  of  the  pupils  was  requested  to  leave  for  in- 
subordination and  misconduct,  and  that  he  refused 
to  do  so,  are  not  disputed.  Regarding  the  school, 
therefore,  as  a  private  school,  and  subject  to  the 
discipline  and  government  of  Miss  Culver  as  its 
teacher,  she  had  a  right,  for  those  reasons,  to  request 
Mr.  Bean  to  assist  her  in  enforcing  her  discipline 
and  government;  and  in  so  doing  Mr.  Bean  would 


142     POWER  AND  AUTHORITY  OF  SCHOOL  OFFICERS. 

be  justified  as  her  agent  and  servant.  Under  such 
circumstances  the  respondent  cannot  be  justified  in 
the  assault  and  battery  of  which  the  jury  have  found 
him  guilty." 

For  a  case  directly  in  point  see  Kidder  v.  Chellis, 
ante,  p.  52. 


APPENDIX  A. 


STATE  LAWS  IN  RELATION  TO  POWERS  OP  SCHOOL 
OFFICERS. 

In  Alabama:  Superintendent  of  state  education 
"shall  exercise  a  general  supervision  over  all  educa- 
tional interests  of  the  state.  ...  He  shall  prepare  and 
have  printed.  .  .  all  laws,  rules,  and  regulations  pertain- 
ing to  the  public-school  system  of  the  state,  and  cause 
the  same  to  be  distributed  to  the  county  superintend- 
ents of  education  and  other  officers  connected  with  the 
school  system,  for  the  information  of  those  interested 
in  the  educational  interests  of  the  state.'1  County  su- 
perintendent" shall  have  general  supervision  of  the  pub- 
lic schools  of  the  county  "  and  "general  superintend- 
ence." Township  superintendent  "shall  have  immedi- 
ate supervision  of  the  public  schools  in  his  township." 

In  Arkansas:  State  superintendent  "shall  be  charged 
with  the  general  superintendence  of  the  business  relat- 
ing to  the  free  common  schools."  School  directors 
"shall  have  charge  of  the  school  affairs,  and  of  the 
school  educational  interests  of  their  districts." 

In  California:  State  board  of  education  "to  adopt 
rules  and  regulations,  not  inconsistent  with  the  laws 
of  this  state,  for  its  own  government,  and  for  the  gov- 


144  APPENDIX. 

eminent  of  the  public  schools."  Superintendent  of 
j)ublic  instruction  "  to  superintend  the  public  schools 
in  the  state,"  and  to  have  the  school  laws  printed,  to- 
gether with  the  rules  and  regulations,  and  supply  the 
same  to  school  officers  and  teachers.  Trustees  of 
school  districts  and  city  boards  of  education  shall "  pre- 
scribe and  enforce  rules  not  inconsistent  with  law,  or 
those  prescribed  by  the  state  board  of  education,  for 
their  own  government  and  the  government  of  schools." 

In  Colorado :  "  The  state  board  of  education  shall 
have  power  to  adopt  any  rules  and  regulations  not  in- 
consistent with  law,  for  its  own  government  and  for 
the  government  of  the  public  schools."  State  super- 
intendent "  shall  have  general  supervision  of  the  pub- 
lic schools  of  the  state."  County  superintendent  "  to 
exercise  a  careful  supervision  over  the  schools  of  his 
county."  District  directors  "shall  have  power  to 
make  such  by-laws  for  their  own  government  and  for 
the  government  of  the  public  schools  under  their 
charge  as  they  may  deem  expedient,  not  inconsistent 
with  the  provisions  of  law  or  the  instructions  of  the 
superintendent  of  public  instruction,"  and  to  "en- 
force the  rules  and  general  regulations  of  the  state 
superintendent." 

In  Connecticut :  State  board  of  education  "  shall 
have  general  supervision  and  control  of  the  educa- 
tional interests  of  the  state."  Boards  of  education  in 
districts  "  to  have  the  general  superintendence  of  the 
public  schools  in  the  district."  Each  board  of  school 
visitors  "  shall  prescribe  rules  for  the  management 
.  .  .  and  discipline  of  the  public  schools." 

In  Delaware  :  "  The  school  committee  of  each  dis- 


APPENDIX.  145 

tn'ct  .  .  .  may  make  regulations  for  the  government 
of  the  school." 

In  Florida:  Superintendent  of  public  instruction 
"  shall  have  the  oversight,  charge,  and  management  of 
all  matters  pertaining  to  public  schools,"  and  "  pro- 
vide for  teachers  such  printed  instructions,  regula- 
tions, and  decisions  as  he  may  judge  necessary  for 
their  use."  Board  of  public  instruction  "  to  perform 
all  acts  reasonable  and  necessary  for  the  promotion  of 
the  educational  interests  of  the  county."  School  trus- 
tees "  to  take  the  special  charge,  inspection,  and  man- 
agement of  all  the  schools  and  school  interests  over 
which  they  have  been  appointed." 

In  Georgia :  "  It  shall  be  the  duty  of  school  trus- 
tees, herein  provided  for,  to  supervise  the  school  oper- 
ations of  the  sub-districts." 

In  Illinois  :  State  superintendent  of  public  instruc- 
tion "  shall  have  the  supervision  of  all  the  public  and 
common  schools  in  the  state,"  and  "shall  make  such 
rules  and  regulations  as  may  be  necessary  and  expe- 
dient "  to  carry  out  the  school  act.  In  districts  of 
two  thousand  inhabitants  the  board  of  directors  "  to 
prescribe  the  method  and  course  of  discipline  and 
instruction  in  the  several  schools,  and  to  see  that  they 
arc  maintained  and  pursued  in  a  proper  manner,"  and 
"  to  establish  all  such  by-laws,  rules,  and  regulations 
for  the  government  and  for  the  establishment  and 
maintenance  of  a  proper  and  uniform  system  of  disci- 
pline in  the  several  schools  as  may,  in  their  opinion, 
be  necessary."  Boards  of  education  in  cities  of  one 
hundred  thousand  inhabitants  "shall  have  charge  and 
control  of  the  public  schools  in  such  cities,"  "  and 
10 


146  APPENDIX. 

generally  to  have  and  possess  all  the  rights,  powers, 
and  authority  required  for  the  proper  management  of 
schools,  with  power  to  enact  such  ordinances  as  may 
be  necessary  or  deemed  expedient  for  such  purpose," 
and  the  same  power  is  given  to  establish  by-laws, 
rules,  and  regulations  as  directors  in  last-named  dis- 
tricts have.  District  directors  "  shall  adopt  and  en- 
force all  necessary  rules  and  regulations  for  the  man- 
agement and  government  of  the  schools." 

In  Indiana:  The  county  superintendent  "shall  have 
the  general  superintendence  of  the  schools  of  his 
county."  School  trustees  "shall  take  charge  of  the 
educational  affairs  of  their  respective  townships,  towns, 
and  cities."  Trustees  of  graded  schools  "  shall  have 
the  care  and  management"  of  such.  School  com- 
missioners in  cities  of  thirty  thousand  inhabitants  or 
more  "  to  establish  and  enforce  regulations  .  .  .  for 
the  government  and  discipline  of  such  schools." 

In  Iowa:  Superintendent  of  public  instruction  "shall 
be  charged  with  the  general  supervision  of  .  .  .  all 
the  common  schools  of  the  state."  Board  of  direc- 
tors shall  "  aid  the  teachers  in  establishing  and  en- 
forcing the  rules  for  the  government  of  the  schools." 
Principal  of  county  high -school,  with  the  approval 
of  trustees,  "  shall  make  such  rules  and  regulations 
as  he  deems  proper  in  regard  to  the  .  .  .  conduct 
and  government  of  the  pupils  under  his  charge." 

In  Kentucky :  Superintendent  of  public  instruction 
and  two  professional  teachers,  who  shall  be  members 
of  the  board  of  education,  "  shall  constitute  a  stand- 
ing committee  who  shall  prepare  rules,  by-laws,  and 
regulations  for  the  common  schools  of  the  state,  which 


APPENDIX.  147 

shall  be  adopted  and  enforced  under  the  authority 
and  direction  of  the  county  school  commissioners, 
in  all  cases  where  the  district  school  trustees  shall 
fail  to  enforce  such."  Each  school  district  "  shall 
be  under  the  control  of  one  trustee."  And  such 
district  trustee  "  shall  visit  the  school "  and  "  see 
that  the  regulations  for  its  government  are  complied 
with." 

In  Kansas  :  County  superintendent  to  visit  schools, 
"  correcting  any  deficiency  that  may  exist  in  the  gov- 
ernment of  the  school,  the  classification  of  the  pupils, 
...  to  make  such  suggestions,  in  private,  to  the 
teachers  as  he  shall  deem  proper  and  necessary  to  the 
Avelfare  of  the  school."  Boards  of  education  in  cities 
"  have  power  to  make  all  necessary  rules  for  the  gov- 
ernment of  the  schools  of  said  city  under  its  charge 
and  control,"  and  "  to  exercise  the  sole  control  over 
the  public  schools  and  school  property  of  the  city." 
District  directors  "  shall  confer  with  the  teacher  in 
regard  to  condition  and  management ;  and  make  such 
suggestions  as  in  their  view  would  promote  the  inter- 
est and  efficiency  of  the  school,  and  the  progress  and 
good  order  of  the  pupils." 

In  Louisiana :  The  free  public  schools  "  shall  be  un- 
der the  control  of  a  state  board  of  education;"  which 
has  power  to  "  make  all  needful  rules  and  regulations 
for  the  government"  thereof.  Superintendent  of  pub- 
lic instruction  "shall  be  charged  with  the  general  su- 
pervision of  all  parish  boards  of  education,  and  of  all 
the  common,  high,  and  normal  schools  of  the  state." 
Parish  board  of  directors  "to  prescribe  rules  for  the 
government  of  the  free  public  schools  within  their 


148  APPENDIX. 

jurisdiction  not  inconsistent  with  this  law  and  the 
rules  prescribed  by  the  state  board  of  education." 

In  Maine  :  State  superintendent  "  to  exercise  a  gen- 
eral supervision  of  all  the  public  schools  of  the  state." 
School  committee  to  "  examine  the  schools,  and  in- 
quire into  the  regulations  and  discipline  thereof,  and 
the  proficiency  of  the  scholars."  Supervisors,  when 
chosen,  to  have  power  of  school  committee. 

In  Maryland :  "  The  state  board  of  education  .  .  . 
shall  enact  by-laws  for  the  administration  of  the  pub- 
lic-school system,  not  at  variance  with  this  act." 
County  school  commissioners  "  shall  have  the  general 
supervision  and  control  of  all  schools  in  their  respec- 
tive counties."  School  trustees  "  shall  exercise  a  gen- 
eral supervision  over  their  respective  schools,  and  visit 
them  frequently." 

In  Massachusetts:  School  committees  "shall  have 
the  general  charge  and  superintendence  of  all  the  pub- 
lic schools."  Where  superintendents  are  appointed  by 
vote  of  city  or  town  they,  "  under  the  direction  and 
control  of  said  committee,  shall  have  the  care  and  su- 
pervision of  the  public  schools." 

In  Michigan :  "  The  superintendent  of  public  in- 
struction shall  have  general  supervision  of  public  in- 
struction." He  shall  prepare  and  send  "  such  instruc- 
tions, relating  to  the  organization  and  government  of 
such  schools,  ...  as  he  may  deem  advisable,  to  the 
several  officers  intrusted  with  their  care  and  manage- 
ment." District  board  "  shall  have  the  general  care  of 
the  school,  and  shall  make  and  enforce  suitable  rules 
and  regulations  for  its  government  and  management." 

In  Minnesota:   Board  of  trustees  "shall  have  the 


APPENDIX.  149 

general  charge  of  the  interests  of  schools  and  school- 
houses  in  their  districts."  Boards  of  education  in  in- 
dependent districts  "  shall  have  power  to  superintend 
and  manage,  in  all  respects,  the  schools  of  said  dis- 
trict, .  .  .  adopt,  alter,  modify,  and  repeal  rules  for 
their  organization,  government,  and  instruction." 

In  Mississippi :  Board  of  education  "  shall  regulate 
all  matters  arising  in  the  practical  administration  of 
the  free-school  system  which  are  not  otherwise  pro- 
vided for."  State  superintendent  of  public  instruction 
has  "general  supervision"  of  the  common  schools. 
School  trustees  "  to  look  specially  after  the  local  in- 
terests of  their  schools." 

In  Missouri:  Board  of  directors  "shall  have  the 
power  to  make  all  needful  rules  and  regulations  for 
the  organization,  grading,  and  government  of  the 
schools  in  their  district.  Said  rules  to  take  effect 
when  a  copy  of  the  same,  duly  signed  by  a  majority 
of  the  board,  is  deposited  with  the  district  clerk, 
whose  duty  it  shall  be  to  transmit  forthwith  a  copy 
of  the  same  to  the  teachers  employed  in  the  schools; 
said  rules  may  be  amended  or  repealed  in  like  man- 
ner. ...  It  shall  be  the  duty  of  the  board  to  visit  the 
schools  under  their  care,  examine  into  their  condition 
and  the  progress  of  the  pupils,  advise  and  consult 
with  the  teachers,  and  to  exercise  such  supervision  as 
will  best  promote  the  best  interests  of  the  schools." 
Boards  in  towns  and  cities  shall  perform  same  duties 
as  other  boards. 

In  Nebraska :  State  superintendent  to  visit  schools 
"  and  witness  and  advise  with  teachers  and  school  offi- 
cers upon  the  manner  in  which  they  are  conducted." 


150  APPENDIX. 

County  superintendent  "  to  examine  carefully  into  the 
discipline  and  modes  of  instruction  .  .  .  and  to  con- 
sult with  teachers  and  district  boards  as  to  the  course 
of  study  to  be  pursued,  and  for  the  improvement  of 
the  instruction  and  discipline  of  the  school."  District 
board  "  shall  have  the  general  care  of  the  school,"  and 
"  make  such  rules  and  regulations  as  they  may  think 
necessary  for  the  government  and  health  of  the  schol- 
ars." Trustees  of  high -school  districts  shall  have 
power  "  to  make  such  rules  and  regulations  as  they 
may  think  needful  for  the  government  of  the  schools." 
Schools  in  cities  and  towns  "  shall  be  under  the  direc- 
tion and  control  "  of  their  boards  of  education. 

In  Nevada :  Superintendent  of  public  instruction 
shall  cause  "  such  instructions  as  he  shall  deem  nec- 
essary and  proper  for  the  organization  and  govern- 
ment of  schools  to  be  transmitted  to  the  local  school 
officers,  who  shall  be  governed  in  accordance  there- 
with." County  superintendent  "  to  exercise  a  general 
supervision  over  the  interests  of  the  public  schools  in 
hJ3  county." 

In  New  Hampshire :  "  Any  town  may  adopt  a  by- 
law providing  for  the  choice  of  a  school  committee 
of  such  number,  chosen  in  such  manner,  for  such 
terms,  with  such  title,  and  such  powers  relating  to 
schools  as  they  may  think  proper."  Town  board  of 
education  "  shall  have  the  control  and  management 
of  the  schools  of  the  district  .  .  .  and  generally  shall 
have  and  enjoy  all  the  power  and  authority,  and  per- 
form all  the  duties  pertaining  to  the  offices  of  pru- 
dential and  school  committees."  School  committees 
"  may  prescribe  suitable  rules  and  regulations  for  the 


APPENDIX.  151 

attendance  upon,  management  .  .  .  and  discipline  of 
the  schools,  whenever  they  deem  the  same  necessary ; 
and  the  same  being  recorded  by  the  town  clerk,  and  a 
copy  thereof  given  to  the  teachers,  and  read  in  the 
schools,  shall  be  binding  upon  scholars  and  teachers." 
High-school  committee  "  shall  have  the  entire  charge 
thereof  .  .  .  and  generally  shall  have  the  same  pow- 
ers and  perform  the  same  duties,  in  regard  to  such 
high-schools,  as  school  committees  in  relation  to  com- 
mon schools."  Towns  and  cities  may  provide  for  su- 
perintendent "  who  shall  be  vested  with  such  of  the 
powers  and  charged  with  such  of  the  duties  of  the 
school  committee  and  of  the  prudential  committee 
...  as  may  be  therein  provided." 

In  New  Jersey:  "The  general  supervision  and  con- 
trol of  public  instruction  .  .  .  shall  be  vested  in  a 
state  board  of  education."  Said  board  "  shall  have 
power  ...  to  prescribe  and  cause  to  be  enforced  all 
rules  and  regulations  necessary  for  carrying  into  effect 
the  school  laws."  The  state  superintendent  "shall 
have  the  supervision  of  all  the  schools  of  the  state." 
County  superintendent,  with  other  tasks,  "  to  dis- 
charge other  duties  of  general  supervision  and  super- 
intendence over  the  public  schools  of  the  county,  in 
accordance  with  the  regulations  prescribed  from  time 
to  time  by  the  state  board  of  education."  School 
trustees  shall  have  power  "to  make  and  enforce  rules 
and  regulations,  not  in  conflict  with  general  regula- 
tions of  the  state  board  of  education,  for  the  govern- 
ment of  schools,  pupils,  and  teachers,"  and  "  to  en- 
force the  regulations  prescribed  by  the  state  board  of 
education." 


152  APPENDIX. 

Iii  New  York :  State  superintendent  of  public  in- 
struction shall  visit  the  common  schools  of  the  state 
"and  inquire  into  their  course  of  instruction,  manage- 
ment, and  discipline,  and  advise  and  encourage  the 
pupils,  teachers,  and  officers  thereof.  .  .  .  And  cause 
such  information  and  instructions  as  he  shall  deem 
conducive  to  the  proper  organization  and  government 
of  the  common  schools,  and  the  due  execution  of  their 
duties  by  school  officers,  to  be  transmitted  to  the 
officers  and  persons  intrusted  with  the  execution  of 
the  same."  School  commissioners  "to  recommend  to 
trustees  and  teachers  the  proper  .  .  .  discipline  and 
management  of  the  schools."  Board  of  education  of 
union  schools  "shall  have  power  to  establish  such 
rules  and  regulations  concerning  the  order  and  disci- 
pline of  the  school  or  schools,  in  the  several  depart- 
ments thereof,  as  they  may  deem  necessary  to  secure 
the  best  educational  results."  And  "  to  have  in  all  re- 
spects the  superintendence,  management,  and  control 
of  said  union  free  schools." 

In  New  York  City :  Board  of  education  to  "  have 
full  control  of  the  public  schools  and  the  public- 
school  system  of  the  city,"  "  subject  only  to  the  gen- 
eral statutes  of  the  state  upon  education."  Ward  trus- 
tees, "  under  such  rules  and  regulations,  and  subject 
to  such  limitations  as  the  board  of  education  may 
prescribe,  to  conduct  and  manage  the  said  schools." 
City  superintendent  "to  advise  and  consult  with  the 
trustees  in  relation  to  the  proper  studies,  discipline, 
and  conduct  of  the  schools,  the  course  of  instruction 
to  be  used." 

In  North  Carolina :    Superintendent  of  public  in- 


APPENDIX.  153 

struction  "  shall  direct  the  operation  of  the  system  of 
public  schools  and  enforce  the  laws  and  regulations  in 
relation  thereto."  County  board  of  education  "  shall 
be  charged  with  the  general  management  of  the  pub- 
lic schools  in  their  respective  counties  .  .  .  and  shall 
see  that  the  school  law  is  enforced."  County  superin- 
tendent "shall  advise  with  teachers  as  to  the  best 
methods  of  instruction  and  government ;  .  .  .he  shall 
have  authority  to  correct  abuses." 

In  Ohio  :  District  board  "  shall  make  such  rules  and 
regulations  as  it  may  deem  expedient  and  necessary 
for  its  government,  and  the  government  of  its  appoint- 
ees and  the  pupils,"  and  "  shall  have  the  management 
and  control  of  the  public  schools  of  the  district." 

In  Oregon :  State  board  of  education  shall  have 
power  "to  prescribe  a  series  of  rules  for  the  general 
government  of  the  public  schools  that  shall  secure 
regularity  of  attendance,  prevent  truancy,  secure  and 
promote  the  true  interests  of  the  schools."  Superin- 
tendent of  public  instruction  "to  exercise  a  general 
superintendence  of  the  county  and  district  school  offi- 
cers and  the  public  schools  of  the  state."  School  di- 
rectors "  to  employ  teachers  and  assist  them  in  the 
government  of  the  school."  Board  of  directors  in 
towns  of  ten  thousand  inhabitants  to  "make  rules 
and  regulations  for  the  government  of  said  district." 

In  Pennsylvania  :  Board  of  directors  of  districts,  and 
controllers  in  cities  and  boroughs,  "shall  exercise  a 
general  supervision  over  the  schools  of  their  respective 
districts." 

In  Rhode  Island :  State  board  of  education  has 
"  general  supervision  and  control  of  the  public  schools 


154  APPENDIX. 

of  the  state."  Public  schools  to  be  "under  the  man- 
agement of  the  school  committee  subject  to  the  su- 
pervision of  commissioner  of  public  schools."  School 
committee  "shall  make,  and  cause  to  be  put  up  in 
each  school -house,  rules  and  regulations  for  the  at- 
tendance, .  .  .  instruction,  government,  and  discipline 
of  the  schools."  Superintendent  of  towns,  under  the 
direction  and  advice  of  committee,  "  to  exercise  such 
powers  as  the  committee  shall  assign  to  him." 

In  South  Carolina :  State  superintendent  "  shall 
have  general  supervision  over  all  the  free  public 
schools  "  and  shall  cause  the  school  laws  of  the  state, 
"with  such  rules,  regulations,  forms,  and  instructions  as 
shall  be  legally  prescribed,  to  be  transmitted  to  the 
county  school  commissioners."  State  board  of  ex- 
aminers "  to  adopt  rules  and  regulations,  not  incon- 
sistent with  the  laws  of  the  state,  for  its  own  govern- 
ment and  the  government  of  the  free  public  schools." 
County  school  commissioner  to  visit  schools,  "noting 
any  deficiencies  that  may  exist,  either  in  the  govern- 
ment of  the  school  or  the  classification  of  its  pupils, . . . 
and  shall  make  such  suggestions,  in  private,  to  the 
teachers  as  to  him  shall  appear  necessary  to  the  good 
order  of  the  school  and  the  progress  of  the  rmpils." 
School  trustees  of  districts  "  shall  take  the  manage- 
ment and  control  of  the  local  interests  of  the  same, 
subject  to  the  supervision  of  the  county  board  of  com- 
missioners." 

In  Tennessee :  "  The  public-school  system  shall  be 
administered  "  by  state  superintendent,  county  super- 
intendent, and  district-school  directors.  State  superin- 
tendent has  a  general  power  of  visitation.    County  su- 


APPENDIX.  155 

pcrintendent, "  to  have  supervision  of  the  public  schools 
in  the  county."  School  directors  "  to  explain  and  en- 
force the  school  laws  and  regulations,  and  themselves 
to  observe  them, ...  to  visit  the  public  schools  within 
the  district  from  time  to  time,  and  see  that  they  are 
conducted  according  to  law  and  with  efficiency." 
Where  cities  and  towns  vote  to  levy  and  collect 
school-tax  the  mayor  and  board  of  aldermen  "shall 
have  exclusive  control  and  management  over  the 
common  schools  of  the  city  or  town." 

In  Texas:  State  superintendent  "shall  advise  and 
consult  with  the  school  boards  of  counties,  cities,  and 
towns  as  to  the  best  methods  of  conducting  the  pub- 
lic schools,  and  shall  be  empowered  to  issue  instruc- 
tions and  regulations  binding  for  observance  on  all 
officers  and  teachers  in  all  cases  where  the  provisions 
of  the  school  law  may  require  interpretation  in  order 
to  carry  out  the  designs  expressed  therein ;  also  in 
cases  that  may  arise  in  which  the  law  has  made  no 
provision ;  and  also  where  necessity  requires  some 
rule  in  order  that  there  may  be  no  hardship  to  indi- 
viduals, and  no  delay  or  inconveniences  in  the  man- 
agement of  school  affairs."  If  incorporated  cities  and 
towns  so  vote  they  "may  have  exclusive  control  of 
the  public  free  schools  within  their  limits."  The 
council  or  board  of  aldermen  of  such  city  or  town 
"  are  invested  with  exclusive  power  to  maintain,  reg- 
ulate, control,  and  govern "  the  free  schools  of  said 
town.  City  council  may  appoint  trustees, who  shall  have 
control  and  supervision  of  the  free  public  schools.  Trus- 
tees of  school  districts  and  committees  shall  have  "the 
management  and  control  of  the  free  public  schools." 


156  APrENDIX. 

In  Vermont:  State  superintendent  has  powers  of 
visitation.  Town  superintendents  shall  also  visit,  and 
"shall  inform  themselves  of  the  discipline  and  progress 
in  study  in  such  schools,  advise  the  teachers,  and 
adopt  the  necessary  measures  for  the  examination, 
regulation,  and  improvement  in  learning  of  such 
schools."  Prudential  committee  "to  adopt  requisite 
measures  not  in  conflict  with  those  of  the  town  su- 
perintendent for  the  inspection,  examination,  regula- 
tion, and  improvement  of  the  school."  School  di- 
rectors in  towns  "have  the  management  of  the  public 
schools,  and  may  make  regulations,  not  inconsistent 
with  law,  for  carrying  the  powers  granted  them  into 
effect ;  and  in  general  shall  have  the  powers  and  per- 
form the  duties  of  the  prudential  committee." 

In  Virginia:  Public -school  system  shall  be  "ad- 
ministered by  ...  a  board  of  education,  a  superin- 
tendent of  public  instruction,  county  superintendents 
of  schools,  and  district  school  trustees."  The  Gen- 
eral Assembly  shall  "  prescribe  the  duties  of  all  school 
officers,  and  shall  make  all  needful  laws  and  regula- 
tions to  carry  into  effect  the  free  public-school  sys- 
tem." State  board  of  education  "  to  make  by-laws 
and  regulations  for  its  own  government  and  for  carry- 
ing into  effect  the  school  laws,"  and  "regulate  all 
matters  arising  in  the  practical  administration  of  the 
school  system  which  are  not  otherwise  provided  for." 
State  superintendent  "shall  have  general  supervis- 
ion of  the  public  free-school  interests  of  the  state." 
County  superintendent  to  visit  all  the  schools ;  "  to 
inquire  into  all  matters  relating  to  their  manage- 
ment .  .  .  and  discipline, . . .  and  in  general  into  what- 


APPENDIX.  157 

ever  concerns  the  usefulness  and  perfection  of  the 
public  free  schools  under  his  supervision."  District 
trustees  "  to  explain  and  enforce  the  school  laws  and 
regulations  and  themselves  to  observe  the  same,"  and 
"to  visit  the  free  public  schools  within  the  district, 
from  time  to  time,  and  to  take  care  that  they  are  con- 
ducted according  to  law  and  with  the  utmost  efficiency." 
Trustees  in  towns  and  cities  have  same  powers  and 
duties  as  district  school  trustees.  "  To  make  regula- 
tions for  the  attendance  of  pupils  upon  the  schools," 
and  the  methods  of  "  government  employed." 

In  West  Virginia :  Board  of  education  "  shall  have 
general  control  and  supervision  of  the  schools  and 
school  interests  of  their  districts."  State  superintend- 
ent "  shall  be  charged  with  the  supervision  of  all 
county  superintendents  and  free  schools  of  the  state, 
and  see  that  the  school  system  is  carried  into  effect, . . . 
and  shall  cause  such  forms,  regulations,  and  instruc- 
tions as  he  may  judge  expedient  ...  to  be  from  time 
to  time  published."  County  superintendent  charged 
with  duties  of  visitation.  Trustee  shall  visit  schools 
and  "  make  such  examination  and  inquiry  as  he  may 
deem  useful  respecting  the  studies,  discipline,  and  gen- 
eral condition  of  the  school,  and  the  conduct  and 
proficiency  of  the  scholars ;  and  give  such  directions 
or  make  such  suggestions  to  the  teachers  as  in  his 
opinion  will  promote  the  interests  of  the  school,  and 
the  health,  morals,  and  progress  of  the  scholars." 
Trustees  of  sub- districts  "shall  have  charge  of  the 
schools  therein." 

In  Wisconsin:  "The  supervision  of  public  instruc- 
tion shall  be  vested  in  a  state  superintendent,"  and 


158  APPENDIX. 

"such  other  officers  as  the  legislature  direct."  Dis- 
trict board  "shall  have  power  to  make  all  needful 
rules  for  the  government  of  the  schools  established  in 
the  district,  such  rules  to  take  effect  when  a  copy  of 
the  same,  signed  by  a  majority  of  the  board,  shall  be 
filed  with  the  clerk."  Directors  of  township  schools 
"  shall  have,  in  all  respects,  the  supervision  and  man- 
agement of  all  the  schools,  with  full  power  to  adopt, 
enforce,  modify,  and  repeal,  from  time  to  time,  all  rules 
and  regulations  not  inconsistent  with  the  laws  of  this 
state,  necessary  for  their  organization,  gradation,  and 
control,  and  for  the  instruction  given  by  them  in  the 
different  branches  of  education  taught  therein,  and  to 
establish  and  enforce  proper  penalties  for  the  vio- 
lation of  such  rules." 


APPENDIX  B. 


STATE   LAWS   IX  RELATION  TO   SUSPENSION   AND   EX- 
PULSION. 

In  Alabama :  "  Every  teacher  of  a  public  school  is 
required  ...  to  suspend  pupils  for  grossly  immor- 
al conduct,  or  persistent  violation  of  the  rules  and 
regulations  of  the  school,  giving  immediate  notice  to 
parents  or  guardians." 

In  Arkansas  :  School  directors  "  may,  at  the  instance 
of  the  teacher,  suspend  from  the  school  any  pupil  for 
gross  immorality,  refractory  conduct,  or  insubordina- 
tion, or  for  infectious  disease.  Provided  that  such 
suspension  from  the  school  shall  not  extend  beyond 
the  current  term." 

In  California  :  Trustees  of  school  districts  and  city 
boards  of  education  "to  suspend  or  expel  pupils  for 
misconduct."  "Continued  -wilful  disobedience  or 
open  defiance  of  the  authority  of  the  teacher  consti- 
tutes good  cause  for  expulsion  from  school,  and  habit- 
ual profanity  and  vulgarity  good  cause  for  suspension 
from  school."  Teachers  to  "suspend  for  good  cause 
any  pupil  in  the  school,  and  report  such  suspension  to 
the  board  of  trustees  or  education  for  review.  If 
such  action  is  not  sustained  by  them  the  teacher  may 


160  APPENDIX. 

appeal  to  the  county  superintendent,  whose  decision 
shall  be  final." 

In  Colorado :  School  board  "  to  suspend  or  expel  pu- 
pils from  school  who  refuse  to  obey  the  rules  thereof." 

In  Connecticut :  The  committee  of  every  district 
"  shall  suspend  during  pleasure,  or  expel  from  the 
school  for  the  term,  all  pupils  found  guilty,  on  full 
hearing,  of  incorrigibly  bad  conduct." 

In  Delaware  :  The  school  committee  of  each  district 
may  provide  regulations  "  for  the  expulsion  of  a 
scholar  for  obstinate  misbehavior." 

In  Florida :  School  trustees  "  to  extend  the  suspen- 
sion of,  or  expulsion  from  school,  of  any  pupil  for 
gross  misconduct,  immorality,  a  disregard  of,  or  persis- 
tent opposition  to,  the  authority  of  the  teacher.  But 
such  restriction  is  not  to  be  continued  after  a  mani- 
fest reformation,  and  a  sincere  determination  to  do 
well  in  future."  Teachers  "  to  suspend  pupils  from 
school  for  ten  days  for  gross  immorality,  misconduct, 
or  persistent  violation  of  the  regulations,  giving  im- 
mediate notice  to  the  parent  or  guardian  of  the  pupil, 
and  to  the  school  trustee  of  the  suspension,  and  the 
cause  of  it." 

In  Illinois :  District  directors,  directors  in  cities  of 
two  thousand  inhabitants,  and  boards  of  education 
in  cities  of  one  hundred  thousand  inhabitants,  have 
power  to  suspend  or  expel  any  pupil  who  may  be 
guilty  of  "gross  disobedience  or  misconduct." 

In  Indiana :  Township  director  "  may  exclude  any 
refractory  pupil.  .  *  .  But  the  exclusion  of  any  pupil 
from  the  school  for  disorderly  conduct  shall  not  ex- 
tern! beyond  the  current  term,  and  may  be,  in  the  clis- 


APPENDIX.  161 

ci'etion  of  the  director,  for  a  shorter  period."  "The 
decision  of  the  director  in  excluding  a  pupil  shall  be 
subject  to  appeal  to  the  towuship  trustee,  whose  deci- 
sion shall  be  final." 

In  Iowa :  The  majority  of  the  board  of  directors  in 
independent  districts,  and  sub-directors  in  sub -dis- 
tricts, "shall  have  power,  with  the  concurrence  of  the 
president  of  the  board  of  directors,  to  dismiss  or  sus- 
pend any  pupil  from  the  school  in  their  district  for 
gross  immorality,  for  a  persistent  violation  of  rules  of 
the  school,  and  to  readmit  them  if  they  deem  it 
proper  so  to  do."  Trustees  of  county  high  -  schools 
may  suspend  or  expel  pupils  who  do  not  "  conform  to 
and  obey  the  rules  of  the  school." 

In  Kentucky :  School  trustees,  upon  complaint  of  the 
teacher,  "  shall  have  power  to  expel  a  pupil."  "  Every 
teacher  shall  have  the  power  ...  to  suspend  from 
school  any  pupil  for  good  cause,  provided  such  sus- 
pension shall  be  reported,  as  soon  as  practicable,  to  the 
trustee,  by  the  teacher,  and  if  such  action  is  not  sus- 
tained by  him  he  may  appeal  to  the  commissioner, 
whose  decision  of  the  cause  shall  be  final."  "  Wilful 
disobedience  and  defiance  of  the  authority  of  the 
teacher,  habitual  profanity  and  vulgarity,  or  other 
gross  violation  of  propriety  or  law,  shall  constitute  a 
good  cause  of  suspension  or  expulsion  from  school." 

In  Kansas :  "  The  district  board  may  suspend,  or  au- 
thorize the  director  to  suspend,  from  the  privileges  of 
a  school,  any  pupil  guilty  of  immorality,  or  persistent 
violation  of  the  regulations  of  the  school,  which  sus- 
pension shall  not  extend  beyond  the  current  quarter 
of  the  school.  Provided  that  the  pupil  suspended 
11 


162  APPENDIX. 

shall  have  the  right  to  appeal  from  the  decision  of 
said  board  of  directors  to  the  county  superintendent, 
who  shall,  upon  a  full  investigation  of  the  charges 
preferred  against  said  pupil,  determine  as  to  his  guilt 
or  innocence  of  the  offence  charged,  whose  decision 
shall  be  final." 

In  Louisiana:  Parish  board  of  directors  "to  dismiss 
any  pupil  from  free  public  schools  for  gross  immo- 
rality, or  for  persistent  violation  of  the  regulations  of 
the  school." 

In  Maine :  School  committee  may  "  expel  from  a 
school  any  obstinately  disobedient  and  disorderly 
scholar,  after  a  proper  investigation  of  his  behavior,  if 
found  necessary  for  the  peace  and  usefulness  of  the 
school,  and  restore  him  on  satisfactory  evidence  of  his 
repentance  and  amendment." 

In  Maryland :  District  school  trustees  "  shall  have 
power  to  suspend  and  expel  pupils  for  cause.  Pro- 
vided that  an  appeal  shall  lie  to  the  board  of  county 
school  commissioners,  whose  decision  shall  be  final." 

In  Massachusetts:  "Every  member  of  a  school  com- 
mittee under  whose  directions  a  child  is  excluded 
from  a  public  school,  and  every  teacher  of  such  school 
from  which  a  child  is  excluded,  shall,  on  application 
of  a  parent  or  guardian  of  such  child,  state  in  writing 
the  grounds  and  reason  for  the  exclusion." 

"A  child  unlawfully  excluded  from  a  public  school 
may  recover  damages  therefor  in  an  action  of  tort, 
to  be  brought  in  the  name  of  such  child  by  his  guar- 
dian or  next  friend,  against  the  city  or  town  by  which 
such  school  is  supported." 

In  Michigan :  District  board  "  may  authorize  or  order 


APPENDIX.  163 

the  suspension  or  expulsion  from  the  school,  whenever 
in  its  judgment  the  interests  of  the  school  demand  it, 
of  any  pupil  guilty  of  gross  misdemeanor  or  persis- 
tent disobedience." 

In  Minnesota:  Boards  of  trustees  and  boards  of  edu- 
cation "  may  suspend  or  expel  pupils  for  insubordina- 
tion, immorality,  or  infectious  disease."  Boards  of 
education  in  independent  districts  "  shall  have  power 
...  to  adopt,  alter,  modify,  and  repeal  rules  .  .  .  for 
suspension,  expulsion,  and  transfer"  of  pupils.  "If 
any  scholar  is  suspended  or  expelled  from  any  such 
school  without  sufficient  cause,  or  on  account  of  color, 
social  position,  or  nationality,  the  board  by  whose  di- 
rection the  offence  was  committed  shall  forfeit  and 
pay  a  fine  of  fifty  dollars  for  each  offence." 

In  Missouri :  Board  of  directors  have  "  power  to  sus- 
pend or  expel  a  pupil  whenever,  upon  due  examina- 
tion, they  become  satisfied  that  the  interests  of  the 
school  demand  such  expulsion." 

In  Nebraska :  District  board  "  may  authorize  or  or- 
der the  suspension  or  expulsion  from  school,  whenever 
in  their  judgment  the  interests  of  the  school  demand 
it,  of  any  pupil  guilty  of  gross  misdemeanors  or  per- 
sistent disobedience,  but  such  expulsion  shall  not  ex- 
tend beyond  the  close  of  the  term." 

In  Nevada :  School  trustees  "  shall  have  power  to 
suspend  or  expel  from  any  public  school  within  their 
district,  with  the  advice  of  the  teacher,  any  pupil  who 
will  not  submit  to  the  reasonable  and  ordinary  rules 
of  order  and  discipline  therein." 

In  New  Hampshire :  "  Any  scholar  may  be  dismissed 
from  school  by  the  school  committee  for  gross  mis- 


164  APFENDIX. 

conduct,  or  for  neglect,  or  refusal  to  conform  to  the 
reasonable  rules  of  the  school,  and  shall  have  no  right 
to  attend  the  school  until  restored  by  the  school  com- 
mittee. ...  If  any  scholar,  after  notice,  shall  attend 
or  visit  a  school  which  he  has  no  right  to  attend, 
or  shall  interrupt  or  disturb  the  same,  he  shall  be 
fined,"  etc. 

In  New  Jersey  :  School  trustees  "  shall  have  power 
...  to  suspend  or  expel  pupils  from  school."  Teach- 
ers "  shall  have  power  ...  to  suspend  from  school 
any  pu2>il  for  good  cause,  provided  that  such  suspen- 
sion shall  be  reported  to  the  trustees  as  soon  as  prac- 
ticable,  and  if  such  action  is  not  sustained  by  them 
the  teacher  may  appeal  to  the  county  superintendent, 
whose  decision  shall  be  final."  Pupils  "  shall  submit 
to  the  authority  of  the  teacher.  Continued  and  wilful 
disobedience,  or  open  defiance  of  the  authority  of  the 
teacher,  the  use  of  habitual  profanity  or  obscene  lan- 
guage, shall  constitute  good  cause  for  suspension  or 
expulsion  from  school."  (Pupils  liable  to  suspension 
for  injury  to  school  property,  sec  p.  72.) 

In  North  Carolina:  "If  any  pupil  should  wilfully 
and  persistently  violate  the  rules  of  school,  such  pu- 
pil may  be  dismissed  by  the  teacher  for  the  current 
term." 

In  Ohio:  "No pupil  shall  be  suspended  from  school 
by  a  superintendent  or  teacher,  except  for  such  time 
as  may  be  necessary  to  convene  the  board  of  educa- 
tion of  the  district,  or  the  directors  of  the  sub-district, 
and  no  pupil  shall  be  expelled  except  by  a  vote  of 
two  thirds  of  such  board  of  directors,  and  not  until 
the  parent  or  guardian  of  the  offending  pupil  has 


APPENDIX.  165 

been  notified  of  the  proposed  expulsion,  and  permit- 
ted to  be  heard  against  the  same,  and  no  scholar  shall 
be  suspended  or  expelled  from  any  school  beyond  the 
current  term  thereof." 

In  Pennsylvania :  Boards  of  directors  in  districts 
and  controllers  in  cities  and  boroughs  "  may  suspend 
or  expel  from  school  all  pupils  found  guilty,  on  full 
examination  and  hearing,  of  refractory  or  incorrigibly 
bad  conduct." 

In  Rhode  Island :  "  The  school  committee  may  sus- 
pend during  pleasure  all  pupils  found  guilty  of  incor- 
rigibly bad  conduct,  or  of  violation  of  the  school  reg- 
ulations." 

In  South  Carolina :  School  trustees  "  to  suspend  or 
dismiss  pupils  when  the  prosperity  and  efficiency  of 
the  schools  make  it  necessary." 

In  Tennessee  :  School  directors  "  to  suspend  or  dis- 
miss pupils  when  the  prosperity  or  efficiency  of  the 
school  makes  it  necessary."  Any  teacher  may,  "  for 
sufficient  cause,  suspend  pupils  from  attendance  on 
the  school  until  the  case  is  decided  by  the  board  of 
school  directors,  which  shall  be  with  as  little  delay  as 
possible." 

In  Virginia  :  School  trustees  "  to  suspend  or  dismiss 
pupils  when  the  prosperity  and  efficiency  of  the  schools 
make  it  necessary."  Teachers  may,  "  for  sufficient 
cause,  suspend  pupils  from  attendance  on  the  school 
until  the  case  is  decided  by  the  board  of  school  trus- 
tees, which  shall  be  with  as  little  delay  as  possible." 
"  Persons  suffering  from  contagious  diseases  shall  be 
excluded."  A  city  superintendent  "  may  suspend  or 
dismiss  pupils  from  the  public  schools  provided  that 


1GC  APPENDIX. 

the  city  school  board  shall  have  power  to  reverse  his 
action  in  the  premises.1' 

In  "West  Virginia  :  School  trustees  "  may  suspend  or 
expel  any  scholar  found  guilty  of  disorderly,  refrac- 
tory, indecent,  or  immoral  conduct,  and  may  refuse  to 
admit  such  scholar  again  to  the  school  until  satisfied 
that  he  will  properly  conduct  himself  thereafter.  But 
trustees  shall  take  no  action  or  proceeding  relating  to 
the  .  .  .  suspension  or  expulsion  of  any  scholar  from 
school  unless  at  a  meeting  of  which  all  the  trustees 
shall  have  had  notice,  and  when  at  least  two  of  their 
number  shall  be  present  and  concur  in  such  action  or 
proceeding.  And  their  action  in  such  particular  shall 
be  subject  to  the  revision  and  correction  of  the  board 
of  education,  upon  complaint  in  writing  of  a  majority 
of  the  patrons  of  the  school."  Directors  of  high- 
schools  "  may  expel  or  suspend  scholars  when  neces- 
sary." 

In  Wisconsin  :  District  board  "  shall  have  power  to 
suspend  any  pupil  from  the  privileges  of  the  school, 
for  non-compliance  with  the  rules  established  by  them, 
or  by  the  teachers  with  their  consent;  to  expel  from 
school  any  pupil  who  shall  persistently  refuse  or  neg- 
lect the  rules  above  mentioned,  whenever,  upon  due 
examination,  they  shall  become  satisfied  that  the  in- 
terests of  the  school  shall  demand  such  expulsion." 


APPENDIX  C. 


STATE    LAWS   IN   RELATION   TO   POWERS   OF   TEACHERS. 

In  Alabama :  "  Every  teacher  of  a  public  school  is 
required  ...  to  maintain  good  order  in  the  school 
and  on  the  playground,"  and  to  "  enforce  the  rules, 
laws,  and  regulations  relating  to  public  schools." 

In  California :  Teachers  "  to  enforce  .  .  .  the  rules 
and  regulations  prescribed  for  the  schools.  ...  To  hold 
pupils  to  strict  account  for  disorderly  conduct  on  the 
way  to  and  from  school,  on  the  playgrounds,  or  dur- 
ing recess." 

In  Florida:  Teachers  "to  require  the  pupils  to  ob- 
serve personal  cleanliness,  neatness,  order,  prompt- 
ness, and  gentility  of  manners,  to  avoid  vulgarity  and 
profanity.  ...  To  enforce  needful  restrictions  upon  the 
conduct  of  the  pupils  in  or  near  the  school  house  and 
grounds,  avoiding,  at  all  times,  unnecessary  severity 
and  measures  that  are  degrading  in  their  tendency." 

In  Kentucky  :  "  Teachers  shall  faithfully  enforce  in 
school  .  .  .  the  regulations  prescribed  in  pursuance  of 
law."  Every  teacher  shall  have  power  and  authority 
to  hold  every  pupil  to  a  strict  accountability  in  school 
for  any  disorderly  conduct  on  the  way  to  and  from 
school,  or  on  the  playground  of  the  school,  or  during 
intermission  or  recess." 


168  APPENDIX. 

In  New  Jersey :  "  Every  teacher  shall  have  power 
to  hold  every  pupil  accountable  in  school  for  any  dis- 
orderly conduct  on  the  way  to  or  from  school,  or  on 
playgrounds  of  the  school,  or  during  recess." 

In  North  Carolina :  "  It  shall  be  the  duty  of  all 
teachers  of  free  public  schools  to  maintain  good  order 
and  discipline  in  their  respective  schools,  to  encour- 
age morality,  industry,  and  neatness  in  all  their  pu- 
pils."   (For  teacher's  power  of  supervision  see  p.  105.) 

In  Oregon  :  "  A  teacher's  duty  while  in  charge  of  a 
school  shall  be  ...  to  maintain  order  in  school,  and 
conduct  himself  in  such  a  manner,  before  his  school, 
as  to  command  respect  from  his  pupils." 

In  Virginia :  Teachers  "  shall  require  of  the  pupils 
cleanliness  of  person  and  good  behavior  during  their 
attendance  at  the  school  and  on  the  way  thither  and 
back  to  their  homes." 


APPENDIX   D. 


STATE   LAWS    IN   RELATION    TO    INSULTS   TO   TEACHERS. 

In  Alabama :  "  If  any  parent,  guardian,  or  other  per- 
son, from  any  cause,  fancied  or  real,  visit  any  school 
and  insult  any  teacher  in  the  presence  of  his  pupils, 
the  person  offending  by  such  conduct  shall  be  liable 
to  a  fine  of  twenty-five  dollars,  and  costs,  to  be  paid 
into  the  school  revenues  of  the  district." 

In  California  :  "  Any  parent,  guardian,  or  other  per- 
son who  shall  insult  or  abuse  any  teacher  in  the  pres- 
ence of  the  school  shall  be  guilty  of  a  misdemeanor, 
and  be  liable  to  a  fine  of  not  less  than  ten  nor  exceed- 
ing one  hundred  dollars." 

In  Florida:  "Any  person  who  shall,  within  the 
school-house  or  grounds,  upbraid  or  insult  any  teacher 
in  the  presence  of  the  pupils  shall,  upon  conviction, 
be  liable  to  a  fine  of  twenty-five  dollars." 

In  Indiana:  "If  any  parent,  guardian,  or  other  per- 
son, from  any  cause,  fancied  or  real,  visits  a  school 
with  the  avowed  intention  of  upbraiding  or  insulting 
the  teacher  in  the  presence  of  the  school,  and  shall  so 
upbraid  or  insult  the  teacher,  such  person,  for  such 
conduct,  shall  be  liable  to  a  fine  of  not  more  than 
twenty-five  dollars,  which,  when  collected,  shall  go 
into  the  general  tuition  revenue." 


INDEX. 

Absence — 

rule  as  to Page  3 

expulsion  for 10,  22 

rule  requiring  written  excuse  for 22 

suspension  for 20 

to  attend  religious  services  by  command  of  parents 

and  priest 10 

Bible — 

reading  of,  rule  concerning 24,  13-4 

rule  requiring  reading  of  Protestant  version 24 

Cases  Reported  and  Cited  : 

A  nderson  v.  State  (3  Head.  R.  455) T19 

"  "      cited 130 

Bendkk  v.  Babcoch  (31  Iowa,  562) 3,  101 

Chandler  v.  Babcock  (31  Iowa,  562) 3 

Churchill  v.  Fewkes,  (13  Brad.  R.  520) 22 

"  "         cited 138 

Com.  v.  Randall  (4  Gray,  36) 110 

"  "  cited 124,129 

Com.  v.  Seed  (5  Penn.  L.  J.  R.  78) 126 

"  "      cited 129 

Cooper  v.  McJunkin  (4  Ind.  291) 113 

"  "  cited 125,130 

Bannenhofer  v.  State  (69  Ind.  295) 124 

"  "        cited 130 

Dannenhoffer  v.  State  (79  Ind.  75) 125 


172 


INDEX. 


Cases  Reported  and  Cited — Continued: 

Davis  v.  Boston  (133  Mass.  103) Page    83 

Donahoe  v.  Richards  (38  Me.  379) 24 

"  "  cited 8,C7, 138 

Drift  v.  Snodyrass  (66  Mo.  286) 1 02 

"        cited 138 

Ferriter  v.  Tyler  (48  Yt.  444) 10 

"  "       cited 57 

Gardner  v.  State  (4  Ind.  633) 115 

"  "      cited 130 

Guernsey  v.  Pitkin  (32  Yt.  226) 33 

"  "      cited 8 

Hathaway  v.  Rice  (19  Yt.  102) 109 

"  "     cited 121 

Ilodykins  v.  Rockport  (105  Mass.  475) 76 

"        cited 130 

Hughes  v.  Goodell  (3  Pitts.  Rep.  264) 86 

Kidder  v.  Chellis  (59  N.  H.  473) 52 

"  "       cited 68,132,142 

King  v.  Jefferson  City  Sch.  Board  (71  Mo.  628) 20 

Lander  v.  Seaver  (32  Yt.  114) 94, 121 

"  "        cited 8,101,130 

McCormick  v.  Burt  (95  111.  263) 138 

"     cited 23 

Morrow  v.  Wood  (35  Wis.  59) 34 

"  "     cited 50,  55-58 

Parker  v.  School  Dist.  (5  Lea,  525) 80 

Peck  v.  Smith  (41  Conn.  442) 88 

Perkins  v.  Directors  (56  Iowa,  479) 72 

Rulison  v.  Post  (79  111.  567) 41 

"  "     cited 50 

Russell  v.  Lynnfield  (116  Mass.  366) 9 

"        cited 130 

Scott  v.  School  Dist.  (46  Vt.  452) 77 

Sewell  v.  Board  of  Ed.  (29  O.  St.  R.  89) 44 

Sherman  v.  Charlestown  (8  Cush.  160) 91 

"  "  cited 8,69,76,101 


INDEX.  173 

Cases  Reported  and  Cited— Continued : 

Spiller  v.  Woburn  (12  All.  127) Page    68 

"  "        cited 8,76 

State  v.  Burton  (45  Wis.  150) 78 

"  "       cited 131 

State  v.  Mizner  (50  Iowa,  152) 122 

"  "       cited 63,130,134 

State  v.  Pendergrass  (2  Dev.  &  Batt.  365) 105 

»  "  cited 123,129 

State  v.  Williams  (27  Vt.  755) 140 

Stevens  v.  Fassett  (27  Me.  266) 110, 133 

Thompson  v.  Seai-er  (63  111.  356) 8 

Trustees  v.  TAe  /Vo/>fc  (87  111.  303) 4G 

"  "  cited 62 

Connecticut  case,  Peck  v.  Smith  (41  Conn.  442) 88 

Corporal  Punishment — 

decisions  relating  to 105 

not  allowable,  for  refusing  to  take  studies  forbidden 

by  parent 34,  50 

right  of  teacher 105 

for  disobedience 1 24 

for  truancy 1 26 

must  be  moderate 122 

must  not  be  excessive  and  cruel 109,  119, 121 

for  refusal  to  study  certain  branches 128 

teacher  must  not  abuse  the  privilege 115 

right  of  teacher  when  resisted 110 

instrument  of. 116,  127 

marks  of  violence 105,  127 

unreasonable  and  excessive  force  cannot  be  used 118 

may  be  inflicted  on  pupils  over  twenty-one  years.  122, 133 

right  and  measure  of. 133 

liability  of  teacher  for  error  of  judgment 138 

note  to  decisions 129 

Law  of  New  Jersey  concerning 128 

"      "  New  York  " 128 

Certificate,  teacher  without,  has  authority 52, 13S 


174  INDEX. 

Disobedience,  expulsion  For Page  77 

Excuses  for  absence 22 

Expulsion — 

decisions  relating  to 74 

committee  to  decide  what  requires 27,  76,  82,  85 

by  teacher,  will  not  support  action  against  town  or 

city 83 

for  absence 10,  22 

for  acts  of  misconduct 76 

for  disobedience 77 

for  attending  social  parties 102 

for  immorality  out  of  school 91 

for  refusal  to  bow  head  during  prayer G8 

for  truancy 94 

for  not  reading  in  Bible 24 

not  allowable,  for  not  taking  studies  not  required  by 

law 41 

not  allowable,  for   refusal   to   pay  for  property  in- 
jured   72 

terms  of,  cannot  inflict  perpetual  disability 86 

teacher  has  no  power  of.  83 

state  laws,  in  relation  to,  see  State  Laws, 

General  Powkks  of  school  officers. 2 

Illinois  cases — 

Churchill  v.  Fetches  (13  Brad.  R,  520)  22 

McCormick  v.  Burt  (95  111.  263) 138 

Rnlison  v.  Post  (79  111.  567) 41 

Thompson  v.  Beaver  (63  111.  356) 8 

Trustees  v.  The  People  (87  111.  303) 46 

Indiana  cases — 

Cooper  v.  McJunkin  (4  Ind.  291) 113 

Dannenhojfer  v.  State  (69  Ind.  295) 124 

Dannenhojfer  v.  State  (79  Ind.  75) 125 

Gardner  v.  State  (4  Ind.  633) 115 

Insulting  teaciikk,  out  of  school. 96 

state  law,  in  relation  to,  see  State  Laws. 


INDEX,  175 

Iowa  cases — 

Bendick  v.  Babcock  (31  Iowa,  562) Page  3,  101 

Chandler  v.  Bubcock  (31  Iowa,  562) 3 

Murphy  v.  Directors  (30  Iowa,  429) 99 

Perkins  v.  Directors  (56  Iowa,  479) 72 

Start  v.  il/««er  (50  Iowa,  152) 50, 122 

Maine  cases — 

Donahoe  v,  Richards  (38  Me.  379) 24 

S/eraw  v.  Fassett  (27  Me.  266) 110 

Mann,  Horace,  opinion  on  power  of  officers  in  schoolroom..  90 
"       "        "     of  teacher  without  certif- 
icate   139 

Massachusetts  cases — 

Com.  v.  Randall  (4  Gray,  36) 116 

Davis  v.  Boston  (133  Mass.  103) 83 

Ilodgkins  v.  Rockport  (105  Mass.  475) 76 

Russell  v.  Lynnjield  (116  Mass.  366) 9 

Sherman  v.  Charleston-it  (8  Cush.  160) 91 

^ptYfer  v.  Wobitm  (12  All.  127) 68 

Misconduct,  expulsion  for 76 

Missouri  cases — 

Dritt  v.  Snodgrass  (66  Mo.  286) 102 

King  v.  Jefferson  Citg  Sch.  Board  (71  Mo.  628) 20 

New  Hampshire  case — 

Kidder  v.  CVietfw  (50  N.  II.  473) 52 

Noktii  Carolina  case — 

State  v.  Peiuhi grass  (2  Dev.  &  Batt.  365) 105 

Officers,  School— 

general  powers  of 2 

acting  in  good  faith,  not  liable  to  parents  or  pupil. . .  134 

power  to  act  in  schoolroom 90,  141 

opinion  of  Horace  Mann 90 

power  over  pupils  for  acts  out  of  school 91 

to  decide  what  requires  expulsion 27,  76,  82, 85 

state  law  in  relation  to  powers  of,  see  State  Laws. 


176  INDEX. 

Ohio  case — 

Sewell  v.  Board  of  Ed.  (29  O.  St.  P.  89) Page  44 

Out  of  School — 

power  over  pupils  for  acts 91 

immorality,  expulsion  for 91 

insulting  teacher 9(3 

acts,  punishable 97 

publication,  ridiculing  school  directors 99 

acts,  within  authority  of  teacher  and  school  board. . .  101 

directors  cannot  forbid  attending  social  parties 102 

Pennsylvania  cases— 

Com.  v.  Seed  (5  Penn.  L.  J.  P.  78) 12G 

Hughes  v.  Goodell  (3  Pitts.  Pep.  2G4) 8G 

Prayer,  expulsion  for  refusal  to  bow  head  during G8 

Reasonable  rule,  what  is. 2 

Pules — 

as  to  absence 3 

as  to  tardiness 3 

cannot  be  made  to  cover  all  cases 131 

made  by  one  member  of  committee 131 

need  not  be  recorded 130 

pupils  over  twenty-one,  subject  to 133 

requiring  written  excuse  for  absence 22 

requiring  English  composition,  is  reasonable 33 

what  is  a  reasonable  rule 2 

rules  in  other  cases 68 

(See  State  Laws.) 

Social  parties,  expulsion  for  attending,  not  allowable. . .   .  102 

State  Laws,  in  relation  to  pupils  and  rules — 

California.... 132 

Kentucky 132 

Missouri 132 

New  Jersey 132 

New  Hampshire 133 


INDEX.  177 

State  Laws,  in  relation  to  pupils  and  rules — Continued: 

Rhode  Island Page  133 

Wisconsin .   133 

State  Laws,  in  relation  to  powers  of  school  officers — 

Appendix  A 143 

Alabama 143 

Arkansas 143 

California 143 

Colorado 144 

Connecticut 144 

Delaware 144 

Florida 145 

Georgia 145 

Illinois 145 

Indiana 14G 

Iowa 146 

Kentucky 146 

Kansas 147 

Louisiana 147 

Maine   148 

Maryland 148 

Massachusetts 148 

Michigan 148 

Minnesota 148 

Mississippi 14!) 

Missouri 149 

Nebraska 149 

Nevada 150 

New  Hampshire 150 

New  Jersey 151 

New  York 152 

New  York  City 152 

North  Carolina 152 

Ohio 153 

Oregon 153 

Pennsylvania 153 

Rhode  Island 153 

12 


178  INDEX. 

State  Laws,  in  relation  to  powers  of  school  officers — Continued: 

South  Carolina Page  154 

Tennessee 154 

Texas 155 

Vermont 156 

Virginia 15G 

West  Virginia 157 

Wisconsin 157 

State  Laws,  in  relation  to  expulsion  and  suspension — 

Appendix  B 159 

Alabama 159 

Arkansas 159 

California 159 

Colorado 159 

Connecticut 160 

Delaware 160 

Florida 160 

Illinois 160 

Indiana 1G0 

Iowa 161 

Kansas 161 

Kentucky 161 

Louisiana 162 

Maine 162 

Maryland 162 

Massachusetts 162 

Michigan 162 

Minnesota 163 

Missouri 163 

Nebraska 163 

Nevada 163 

New  Hampshire 163 

New  Jersey ...  164 

North  Carolina 164 

Ohio  164 

Pennsylvania 165 

Rhode  Island 165 


179 


State  Laws,  in  relation  to  expulsion  and  suspension — Continued: 

South  Carolina Fage  165 

Tennessee 165 

Virginia 1G5 

West  Virginia 166 

Wisconsin ICG 

State  Laws,  in  relation  to  powers  of  teachers — 

Appendix  C 167 

Alabama  167 

California 167 

Florida 167 

Kentucky 167 

New  Jersey 168 

North  Carolina 1 68 

Oregon 1G8 

Virginia 1G8 

State  Laws,  in  relation  to  insults  to  teachers — 

Appendix  D 169 

Alabama 169 

California 169 

Florida 169 

Indiana 169 

Studies— 

corporal  punishment  for  refusing  to  pursue  certain.. .  128 
uot  to  be  enforced  against  reasonable  wish  of  par- 
ent   34, 50 

rules  concerning 24 

not  required  by  law,  pupils  not  compelled  to  take. . .  41 

parent  has  right  to  determine 46, 50 

suspension  for  not  declaiming 52 

suspension  for  not  studying  rhetoric 44 

note  to  decisions  on 56 

Suspension — 

decisions  relating  to 74 

for  tardiness 3, 9 

for  absence 20 

for  uot  writing  English  composition 33 


180  INDEX. 

Suspension — Continued : 

for  not  studying  rhetoric. Page  44 

for  not  declaiming 52 

for  publishing  article  ridiculing  directors 99 

for  refusing  to  remain  quiet  during  reading  of  Bible.  134 

where  teacher  enforced  rule  against  wish  of  directors  80 

power  of  teacher , 79,  80 

state  laws  in  relation  to,  see  State  Laws. 

Tardiness — 

rule  as  to 3 

suspension  for 3, 9 

directors  cannot  bar  door  against  tardy  pupils 9 

rule  that  pupils  should  be  sent  to  committee  for 9 

Teacher — 

authority  of,  without  certificate 52, 138 

opinion  of  Horace  Mann 139 

power  to  suspend 78, 80 

has  no  power  to  expel 85 

may  call  assistance 110, 141 

cannot  enforce  rule  against  wish  of  directors 80 

liability  of,  for  error  of  judgment 138 

not  liable  for  excessive  punishment,  unless  clearly 

so 122 

insults  to,  out  of  school 96 

state  laws  in  relation  to,  see  State  Laws. 

state  laws  in  relation  to  powers  of,  see  State  Laws. 

*S'ee  Corporal  Punishment. 

Tennessee  cases — 

A  nderson  v.  State  (3  Head.  R.  455) 119 

Parker  v.  School  District  (5  Lea,  525) 80 

Truant— 

expulsion  of. 94 

corporal  punishment  for 126 

truancy 20 

Twenty-one  years,  pupils  over,  subject  to  rules 133 

subject  to  corporal  punishment , 133 


INDEX.  181 

Vermont  cases — 

Ferriier  v.  Tyler  (48  Vt.  444) Page     10 

Hathaway  v.  Rice  (19  Vt.  102) 109 

Lander  v.  Seaver  (32  Vt.  114) 96, 121 

Scott  v.  School  Dist.  (46  Vt.  452) 77 

State  v.  Williams  (27  Vt.  755) 140 

Wisconsin  cases — 

Morrow  v.  Wood  (35  Wis.  59) 34 

State  v.  .Bartow  (45  Wis.  150) 78 


A  Book  that  every  Teacher  should  have. 


METHODS  OE  TEACHING. 

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An  Interesting  Book  for  Teachers. 


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